Petition for Writ of Certiorari — Bentley Streett, Petitioner v. United States
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PETITION APPENDIX
TABLE OF APPENDICES
APPENDIX A: Opinion, United States v.
Bentley Streett, No. 22-2056 (10th Cir.
Oct. 5, 2023) ..............................................
1a
APPENDIX B: Memorandum Opinion and
Order, United States v. Bentley Streett,
No. CR 14-3609 JB (D.N.M. Nov. 27, 2018)
................................................................... 34a
APPENDIX C: Denial of Rehearing En
Banc, United States v. Bentley Streett, No.
22-2056 (10th Cir. Dec. 26, 2023) ............. 215a
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Document: 010110931972
Date Filed: 10/05/2023
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PUBLISH
FILED
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
October 5, 2023
FOR THE TENTH CIRCUIT
_________________________________
Christopher M. Wolpert
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
No. 22-2056
BENTLEY STREETT,
Defendant - Appellant.
_________________________________
Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:14-CR-03609-JB-1)
_________________________________
Grant R. Smith, Assistant Federal Public Defender (Virginia L. Grady, Federal Public
Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant.
C. Paige Messec, Assistant United States Attorney (Alexander M.M. Uballez, United
States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.
_________________________________
Before TYMKOVICH, EBEL, and EID, Circuit Judges.
_________________________________
EBEL, Circuit Judge.
_________________________________
Defendant-Appellant Bentley Streett was arrested for—and eventually pleaded
guilty to—various counts of child pornography and sexual activity with minors. His
actions were discovered by the mother of one of the minors from whom Mr. Streett
attempted to solicit pornography, prompting the mother to contact the National
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Center for Missing and Exploited Children. An investigation ensued, resulting in the
production of Mr. Streett’s cell phone records, followed by his arrest and a search of
his home, computers, and phones.
Mr. Streett now appeals on two grounds. First, he argues that the search
warrant permitting the search of his home lacked probable cause, and that the search
could not be justified by an exception to the requirement that officers obtain a
legitimate warrant. As such, he argues that all evidence obtained after this warrant
was issued should be suppressed. Second, he argues that the district court erred in
denying his motion to dismiss counts 3 through 7 of his indictment. Mr. Streett
argues that the statute under which these charges were brought—18 U.S.C.
§ 2251(a)—is unconstitutionally overbroad because it criminalizes a substantial
amount of protected speech.
Exercising jurisdiction under 28 U.S.C § 1291, we AFFIRM the denial of Mr.
Streett’s motion to suppress and motion to dismiss.
I. BACKGROUND
In October 2013, the National Center for Missing and Exploited Children
received an online tip that Mr. Streett had been texting the tipster’s 15-year-old
daughter, M.Y., and had requested that M.Y. send him a nude photograph. The
tipster said that she did not believe M.Y. had sent any photos to Mr. Streett but was
concerned that Mr. Streett was soliciting photos from other minors. The tipster also
stated that Mr. Streett was located in Albuquerque, New Mexico, and provided his
telephone number. The note accompanying the tip provided additional details about
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Mr. Streett, including his birth date and other telephone numbers associated with
him.
Special Agent Jon Whitsitt was assigned to investigate the tip. He began by
gathering as much information as possible without launching a full investigation,
before then presenting this information to a supervisor for assignment to the
appropriate law enforcement agency. In investigating the tip, Whitsitt did not believe
that there was probable cause that sexual exploitation had occurred. He did believe,
however, that if the tip were true, a crime had been committed which justified further
investigation. He prepared a subpoena duces tecum for the telephone number
provided by the tip, as he did for most cases where possible sexual exploitation had
occurred. To get authorization for a subpoena, he provided background information
to his supervisor and an attorney at the New Mexico Attorney General’s Office,
Crimes Against Children Task Force. He then received authorization to seek a
subpoena.
In November 2013, Whitsitt sent a preservation letter to T-Mobile requesting
that all information relating to the phone number in the tip be preserved for 90 days
pending a court order.1 A few days later, a New Mexico state court issued a Grand
Jury subpoena requesting records for the phone number, or in the alternative, that the
records be sent to Special Agent Whitsitt. T-Mobile sent the information to Whitsitt
1
The district court order says November 2014, but it is clear from context that
the district judge meant November 2013.
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and included Streett’s telephone number, street address, birth year, and social
security number.
In February 2014, the investigation was assigned to Detective Hartsock at the
Bernalillo County Sheriff’s Office Crimes Against Children Unit. Hartsock was
provided with the tip, the subpoena, and the phone records that were received from
the subpoena. He then obtained a search warrant for the telephone records received
from T-Mobile. These telephone records did not disclose the content of
communications, but did provide metadata regarding such communications. The
records disclosed a high volume of communications between Mr. Streett and M.Y,
including a mixed media message sent from Mr. Streett to M.Y. (which indicates that
a photograph was sent). The records also showed that Mr. Streett had communicated
with 135 different area codes, and that many of the messages had been mixed media
(once again indicating that photographs were being exchanged).
In mid-February 2014, Hartsock filed an affidavit (the “Warrant Affidavit”)
seeking a warrant (the “Search Warrant”) to search the residence associated with Mr.
Streett in the T-Mobile records, located at 4620 Plume St. in Albuquerque. The
Warrant Affidavit provided a description of the appearance of the 4620 Plume
residence and stated that the only car not backed into the driveway was a brown Fiat
with a New Mexico license plate number of PL8SPCL. The Warrant Affidavit also
described the tip and the T-Mobile records. Moreover, before submitting the Warrant
Affidavit, Kittson County officers in Minnesota spoke to M.Y. and learned that she
was fourteen at the time Mr. Street requested the nude photo (which Mr. Streett
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allegedly knew), and that Mr. Streett had asked her to send him nude photographs
multiple times (requests with which she had never complied).2 The Warrant
Affidavit detailed this interview. Hartsock also stated that his training and
experience led him to believe that a person does not try to get child pornography just
once and only in one way. However, the Warrant Affidavit did not discuss
information gleaned from the phone records, why Hartsock decided to search the
4620 Plume residence, or why he believed evidence of criminal activity would be
found there.
The Search Warrant was approved telephonically on February 24, 2014, and
was then executed on February 25, 2014.3 When he arrived at the 4620 Plume
residence, Hartsock left a copy of the Search Warrant with Mr. Streett’s live-in
girlfriend, and then proceeded to seize a Mac laptop, a Mac desktop, one smart
phone, and one regular phone. Mr. Streett was present, and once the search was
completed, he was escorted to an unmarked vehicle and read his Miranda warnings.
He then voluntarily spoke to the police and admitted that he uses his Twitter account
to meet women, but also said that he asks his followers to be at least eighteen years
old. Mr. Streett also admitted, though, that he may have asked some girls under
2
Although Mr. Streett would not be indicted for his conduct with M.Y., we
focus on these facts because they provide the groundwork for the execution of the
Search Warrant that is at issue before us.
3
The Warrant Affidavit and the Search Warrant are essentially the same
document. The Search Warrant simply contains a note on the final page that it was
telephonically approved by the magistrate judge. Depending on context of the
Warrant Affidavit, we may refer to this document as either the Warrant Affidavit or
the Search Warrant.
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eighteen for nude photographs of themselves—but didn’t believe he had any child
pornography on his cell phone.
After various other search warrants were executed (none of which are relevant
to this appeal), and the identities of various other underaged victims were discovered,
a grand jury returned a Second Superseding Indictment charging Mr. Streett for his
conduct involving five of the minors. Mr. Streett was charged with two counts of
traveling in interstate commerce “for the purpose of engaging in any illicit sexual
conduct” with a person under eighteen, in violation of 18 U.S.C. § 2423(b), and five
counts of persuading and attempting to persuade a minor “to engage in sexually
explicit conduct for the purpose of producing a visual depiction of such conduct,” in
violation of 18 U.S.C. §§ 2251(a), (e), and 2256. He was also charged with one
count of distributing visual depictions of minors engaged in sexually explicit
conduct, in violation of 18 U.S.C. §§ 2252(a)(2), (b)(1), and 2256; two counts of
transferring obscene materials to minors, in violation of 18 U.S.C. § 1470; and two
counts of possessing child pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B),
(b)(2), and 2256.
Mr. Streett filed a motion to suppress on the basis that the Search Warrant
failed to establish probable cause to search the 4620 Plume residence because it did
not connect Mr. Streett to this address via the T-Mobile records. Accordingly, Mr.
Streett argued that all evidence obtained from this warrant and all additional searches
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must be suppressed.4 In addition, Mr. Streett filed a motion to dismiss four counts of
his indictment on the basis that 18 U.S.C. § 2251(a) is unconstitutionally overbroad
under the First Amendment.
The district court denied Mr. Streett’s motion to suppress and motion to
dismiss. The court agreed with Mr. Streett that the Search Warrant failed to establish
probable cause because it did not explicitly link Mr. Streett to the 4620 Plume
residence. However, the district court concluded that the Search Warrant was
executed in good faith. The district court also ruled that the evidence would
inevitably have been discovered even if the Search Warrant had been denied due to
its deficiencies because the Warrant Affidavit would inevitably have been corrected
and the Search Warrant would have subsequently been issued. Alternatively, the
district court concluded that the five victims’ identities would inevitably have been
discovered from the T-Mobile records even without the Search Warrant. Finally, on
the motion to dismiss, the district court concluded that § 2251(a) is not
unconstitutionally overbroad. Mr. Streett then pled guilty to each count, reserving
his right to appeal the issues before us.
On appeal, Mr. Streett argues that the district court erred in applying the good
faith exception to the warrant requirement. He also argues that the inevitable
discovery doctrine does not generally apply to defective warrant cases, and even if it
did, it does not apply to the Search Warrant here. He additionally argues that it was
4
The district court concluded that Hartsock had probable cause to search the
T-Mobile records, and Streett does not contest this determination.
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erroneous to find that the five victims’ identities would inevitably have been
discovered without the Search Warrant. Lastly, Mr. Streett argues that § 2251(a) is
unconstitutionally overbroad, and so his motion to dismiss should have been granted.
We agree with the district court that the Search Warrant did not establish
probable cause because it failed explicitly to link Mr. Streett to the 4620 Plume
residence, but we affirm the district court’s determination that the Search Warrant
would inevitably have been issued under a properly revised affidavit had it originally
(and properly) been denied for lack of probable cause. Because we affirm on this
basis, we do not address the application of the good faith doctrine to the Search
Warrant, nor do we address whether the identities of the five victims would otherwise
have been discovered without reliance on the Search Warrant, since both issues are
mooted by our conclusion that the Search Warrant would inevitably have been
issued. We separately conclude that the district court correctly rejected Mr. Streett’s
argument that § 2251(a) is unconstitutionally overbroad because we do not construe
the statute as implicating a substantial amount of protected speech.
II. DISCUSSION
A.
The district court properly applied the inevitable discovery doctrine in
denying the motion to suppress evidence obtained from a deficient search
warrant.
We first consider the general application of the inevitable discovery doctrine
to the Search Warrant, which all parties agree was issued without probable cause.
We agree with the district court that a revised affidavit and warrant would have been
issued promptly if the initial warrant application had been denied. As a result, it was
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inevitable that the evidence of Mr. Streett’s illegal behavior would have promptly
been discovered.
Generally, “evidence obtained in violation of the Fourth Amendment will be
suppressed under the exclusionary rule”—subject to a few exceptions. United States
v. Christy, 739 F.3d 534, 540 (10th Cir. 2014). “[T]he inevitable discovery doctrine
is one such exception.” Id. Per this exception, “[i]f the prosecution can establish by
a preponderance of the evidence that the information ultimately or inevitably would
have been discovered by lawful means,” then the evidence need not be suppressed.
Nix v. Williams, 467 U.S. 431, 444 (1984). In reviewing the applicability of the
inevitable discovery doctrine, we review factual determinations for clear error and
the ultimate Fourth Amendment conclusions de novo. Christy, 739 F.3d at 540.
Mr. Streett argues that the inevitable discovery doctrine is inapplicable here
for two reasons. First, he argues that the inevitable discovery doctrine is inapplicable
as a matter of law in cases where a warrant was issued without probable cause.
Second, he argues that, even if the doctrine can apply in some cases where a warrant
was improperly issued, the Government failed to establish that a proper version of the
Search Warrant would inevitably have been issued or that the evidence would have
been inevitably discovered. We reject both arguments.
1.
The inevitable discovery doctrine can apply to cases where a
warrant was improperly issued.
To apply the inevitable discovery doctrine to the defective Search Warrant, we
must first consider whether the inevitable discovery doctrine can ever apply when a
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warrant has been improperly issued. We find the Third Circuit’s decision in United
States v. Stabile, 633 F.3d 219 (3d Cir. 2011), instructive on this point. There, the
officers intended to obtain a search warrant for a 120 GB hard drive suspected of
containing child pornography, but the warrant application accidentally called instead
for the search of a separate 40 GB hard drive (for which no probable cause had been
shown). Id. at 245. The officers executed the search warrant that was issued and
searched the 40 GB hard drive. Id. at 245–46. Then, using the evidence obtained
from the search of the 40 GB hard drive, the officers sought and received a new
warrant to search five other hard drives (including the 120 GB hard drive they had
originally intended to search). Id.
The Third Circuit concluded that the evidence obtained from the search of the
40 GB hard drive did not need to be suppressed because the evidence on that hard
drive would inevitably have been discovered. The Third Circuit reasoned that “the
Government had probable cause to obtain a warrant to conduct a full search of the
120 GB hard drive” and had “attempted to obtain the first federal search warrant
before fully searching the 120 GB hard drive.” Id. at 246. Given these facts, if the
Government had received the warrant to search the 120 GB hard drive—as they had
initially intended—and then proceeded to search that hard drive, the government
would have then obtained evidence which would have provided them with probable
cause to search the 40 GB hard drive. Id. As such, the contents of the 40 GB hard
drive would inevitably have been discovered. And since “the Government attempted
to secure state and federal search warrants at every step of the search,” the Third
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Circuit concluded “that there would be little deterrence benefit in punishing the
Government.” Id. This reasoning makes sense, and we therefore conclude that the
inevitable discovery doctrine can apply when a warrant has been improperly issued.
See id.
Mr. Streett makes three primary arguments against the application of the
inevitable discovery doctrine to cases of a defective warrant. He first contends that
this ruling will defeat the probable cause requirement. This is unpersuasive because
in deciding the applicability of the inevitable discovery doctrine, courts must still
consider “the strength of the showing of probable cause at the time the search
occurred.” United States v. Souza, 223 F.3d 1197, 1204 (10th Cir. 2000) (quoting
United States v. Cabassa, 62 F.3d 470, 473–74 (2d Cir. 1995)). Without a showing
by the Government that the officer had probable cause at the time the warrant
application was submitted, the Government could not show that an alternative
properly obtained warrant inevitably would have been issued.
Mr. Streett next claims that this ruling will diminish officers’ incentive to craft
a proper warrant affidavit in the first place. We see nothing in our ruling that would
give an officer incentive deliberately to file an inadequate initial affidavit in support
of a search warrant. Stabile, 633 F.3d at 246. Officers will still be best served by
including all material facts in initial warrant applications.
Finally, Mr. Streett argues that applying the inevitable discovery doctrine in
defective warrant cases will require too much hypothetical reasoning, since courts
will have to consider whether a proper warrant would have been issued after an
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improper warrant was denied. But hypothetical reasoning is required whenever the
inevitable discovery doctrine is at issue. For example, in United States v. Christy, we
determined that the officer there likely would have obtained a warrant in a
hypothetical world since he had strong probable cause and was cross-designated to
obtain state and federal search warrants—even though he had taken “no steps to
obtain a warrant” when the search occurred. 739 F.3d at 543. This case involves no
more hypothetical reasoning than Cristy.
2.
The Search Warrant would inevitably have been granted had
it originally been denied, and the evidence would inevitably
have been discovered.
Having concluded that the inevitably discovery doctrine can apply in cases
where a warrant was improperly issued, the question now is whether the Search
Warrant at issue here would inevitably have been granted had it been initially denied
for lack of an adequate showing of probable cause, and thus whether the evidence
would inevitably have been discovered. We conclude that it would have.
We consider four factors to determine how likely it is that a proper warrant
inevitably would have been granted: (1) “the extent to which the warrant process has
been completed at the time those seeking the warrant learn of the search,” (2) “the
strength of the showing of probable cause at the time the search occurred,”
(3) “whether a warrant ultimately was obtained, albeit after the illegal entry,” and
(4) “evidence that law enforcement agents ‘jumped the gun’ because they lacked
confidence in their showing of probable cause and wanted to force the issue by
creating a fait accompli.” Souza, 223 F.3d at 1204 (quoting Cabassa, 62 F.3d
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at 473 n.2). This requires courts “to examine each of the contingencies involved that
would have had to have been resolved favorably to the government in order for the
evidence to have been discovered legally and to assess the probability of the
contingencies having occurred.” Id. at 1205. To meet this burden, the Government
must provide “demonstrated historical facts capable of ready verification.” United
States v. Shrum, 908 F.3d 1219, 1235 (10th Cir. 2018).
The first factor—i.e., the extent of the warrant process—clearly favors the
Government. In prior cases, we have found that this factor favors the Government
when the officers were deep into the investigative process, see United States v.
Cunningham, 413 F.3d 1199, 1204 (10th Cir. 2005), or when they had taken steps to
start the warrant application process, see Souza, 223 F.3d at 1205. Here, Hartsock
had actually received a warrant. So, the warrant process was not merely close to
completion; it had been completed (albeit in defective fashion).
Second, the strength of probable cause also favors the Government. At the
time he applied for the Search Warrant, Hartsock had evidence from the tip provided
by M.Y.’s mother, as well as evidence provided by M.Y. to the Kittson County
officers. This provided Hartsock with strong evidence that Mr. Streett had
persistently asked M.Y. for a nude photograph multiple times with knowledge that
she was a minor. The T-Mobile records also showed a high amount of
communications with 135 different area codes, including many texts alerting Mr.
Streett to a Twitter notification, which indicates that Mr. Streett was communicating
with various people he had met on the internet (as he had done with M.Y.). Finally,
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multiple sources stated that 4620 Plume was Mr. Streett’s residence, and Hartsock’s
experience as an officer led him to believe that solicitors of child pornography often
keep this evidence in their homes. This provided strong probable cause that evidence
of a crime would be found at 4620 Plume.5
The third factor—whether a warrant was ultimately obtained—is admittedly an
awkward fit for these facts. Since Hartsock obtained a warrant (albeit a defective
one) before the search and executed on it, we consider instead whether it was likely
that Hartsock would have obtained a subsequent proper warrant if the deficient
application originally had been denied. In the Warrant Affidavit, Hartsock stated that
the New Mexico Attorney General’s Internet Crimes Against Children task force
learned from the T-Mobile records that the phone number “was registered to Bentley
Streett, who lives in Bernalillo County.” R. vol. 1, at 188. Both parties agree that
this failed to establish probable cause that evidence of a crime would specifically be
found at the 4620 Plume residence. In a hypothetical world where the warrant
application was denied on this basis, though, Hartsock would have only had to add a
single sentence to the Warrant Affidavit to render it proper. Rather than say “who
lives in Bernalillo County,” the affidavit would have established probable cause if it
5
Mr. Streett argues that the Government cannot rely on the inevitable
discovery doctrine when its only argument is that it had probable cause supporting
the search. See Souza, 223 F.3d at 1204. Like in Souza, though, we do not only rely
on the fact that “at the time the illegal search occurred, probable cause . . . was
extremely strong,” but also consider the extent of the warrant application process and
whether a warrant was issued. Id. at 1205–06. The strength of the probable cause
showing is just one of multiple factors we consider.
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had simply added something to the effect of “who, according to the T-Mobile
records, resides at 4260 Plume Rd. NW, Albuquerque, NM.” That would have been
an easy fix and Hartsock already had all the information to add that specificity.
Since the Warrant Affidavit resulted in the issuance of the Search Warrant even
though it ultimately failed to establish probable cause, it is likely that an even more
detailed amended affidavit would have secured a warrant as well. Thus, we conclude
that the third factor favors the Government because a proper warrant likely would
have been obtained had the original application been denied.
Fourth, as for evidence that the officers jumped the gun “due to their lack of
confidence about probable cause,” Christy, 739 F.3d at 542, this factor also favors
the Government. Hartsock both applied for and received a search warrant, and
waited until the warrant was issued before executing the search. These facts belie
any notion that he was not confident in his lack of probable cause. In sum, then, all
four Souza factors favor an application of the inevitable discovery doctrine to these
facts.
Mr. Streett argues that the facts here resemble two other cases in which we
concluded that the inevitable discovery doctrine was inapplicable, but we do not find
these cases analogous. The first is United States v. Owens, where we rejected the
notion that contraband discovered by way of an illegal search of a bag in a motel
room would inevitably have been discovered by the motel’s cleaning staff. 782 F.2d
146, 153 (10th Cir. 1986). We pointed out that, had the cleaning staff found the bag,
they may not have necessarily opened it nor called the police. Id. Moreover, it was
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entirely possible that the defendant could have returned to the motel room before the
cleaning staff discovered the contraband. Id. Because of the various contingencies,
we concluded that the inevitable discovery doctrine was inapplicable.
The second case Mr. Streett cites is United States v. Neugin, where we
determined that the inevitable discovery doctrine did not apply to the search of a
camper left in a restaurant parking lot. 958 F.3d 924, 935 (10th Cir. 2020). We
reasoned that, had the police not searched the vehicle, the defendant could have
called a towing company or a mechanic and the police would no longer have had
access to the camper. Id. Like in Owens, these very plausible contingencies
rendered the independent discovery doctrine inapplicable.
These two cases concern various plausible contingencies which would likely
cause a presumed future state of affairs to diverge drastically from the actual state of
affairs, and which would prevent the contraband from ever being discovered. But
here, the actual world where the warrant was improper and the presumed future world
where the search would have been proper differs by just one easy-to-add sentence in
the Warrant Affidavit. And there is no reason to think that this small fix would have
led to a significant delay in either the issuance or execution of the search warrant—
especially since the warrant was approved telephonically.6 These facts do not lend
6
Mr. Streett argues that, in this alternative world, the magistrate judge may
have asked for a records check on the address if it had been included in the Warrant
Affidavit, and may have denied the warrant application on this basis. But had the
magistrate judge been inclined to ask for a records check, this request likely would
have been made in connection with the initial application.
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themselves to the much greater contingencies like those that were in play in Owens
or Neugin. Rather, the world of the defective affidavit and the hypothetical world of
the proper affidavit overlap almost entirely. Thus, the district court did not err in
concluding that the discovery of the evidence here was inevitable.
B.
The “persuade” provision of 18 U.S.C. § 2251(a) is not facially overbroad.
We turn now to Mr. Streett’s argument that counts 3 through 7 of Mr. Streett’s
Second Superseding Indictment should have been dismissed because 18 U.S.C.
§ 2251(a) criminalizes a substantial amount of protected speech and is therefore
facially overbroad. In the context of a First Amendment challenge like this one, “a
law may be invalidated as overbroad if ‘a substantial number of its applications are
unconstitutional, judged in relation to the statute’s plainly legitimate sweep.’”
United States v. Stevens, 559 U.S. 460, 473 (2010) (quoting Washington State
Grange v. Washington State Republican Party, 552 U.S. 442, 449, n.6 (2008)).
Although litigants normally may not assert constitutional rights on behalf of third
parties, “the overbreadth doctrine instructs a court to hold a statute facially
unconstitutional even though it has lawful applications, and even at the behest of
someone to whom the statute can be lawfully applied,” if the statute criminalizes a
substantial amount of protected speech compared to its legitimate sweep. United
States v. Hansen, 143 S. Ct. 1932, 1939 (2023). “Invalidation for overbreadth is
‘strong medicine’ that is not to be ‘casually employed.’” United States v. Williams,
553 U.S. 285, 293 (2008) (quoting Los Angeles Police Dept. v. United Reporting
Publishing Corp., 528 U.S. 32, 39 (1999)). “The overbreadth claimant bears the
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burden of demonstrating, ‘from the text of [the law] and from actual fact,’ that
substantial overbreadth exists.” Virginia v. Hicks, 539 U.S. 113, 122 (2003) (quoting
N.Y. State Club Assn., Inc. v. City of New York, 487 U.S. 1, 14 (1988)). We review
a district court’s conclusions of law concerning the constitutionality of a statute de
novo. United States v. Carel, 668 F.3d 1211, 1216 (10th Cir. 2011).
The overbreadth analysis has two steps. The first step “is to construe the
challenged statute” to determine whether it covers protected speech. Williams,
553 U.S. at 293. In other words, “[t]o judge whether a statute is overbroad, we must
first determine what it covers.” Hansen, 143 S. Ct. at 1940. After the scope of the
statute has been determined, the second step of the overbreadth analysis asks us to
determine whether the unconstitutional applications of the statute are “substantially
disproportionate to the statute’s lawful sweep.” Id. at 1939. For the statute to be
unconstitutionally overbroad, its “unconstitutional applications must be realistic, not
fanciful[.]” Id. Proceeding through this two-part analysis, we conclude that
§ 2251(a) is not substantially overbroad.
1.
Mr. Streett has not waived his arguments.
Before considering the merits of Mr. Streett’s challenge, we first address the
Government’s argument that Mr. Streett has waived most of his arguments. The
Government claims that Mr. Street only argued below that § 2251(a) is generally
overbroad, rather than focusing on the “persuade” provision of § 2251(a) alone. This
argument is unavailing. Appellate arguments may be “more detailed” than the
arguments presented to the district court, so long as the arguments below “gave the
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district court ample opportunity to consider” the issues. United States v. McIntosh,
29 F.4th 648, 655 (10th Cir. 2022). Although Mr. Streett did not specifically focus
on the “persuades” language below, he did present a fulsome argument about the
unconstitutional overbreadth of § 2251(a), which is a generalized version of the
argument he makes before us. Indeed, it would have been obvious to the district
court that the “persuades” provision was at issue, since the court recognized that Mr.
Streett had been charged with “persuading and/or attempting to persuade a minor to
engage in sexually explicit conduct for the purpose of producing a visual depiction of
such conduct.” R. vol. 1, at 919 (emphasis added). And the district court had ample
opportunity to consider this issue thoroughly, evidenced by the district court’s
thorough 116-page opinion. Mr. Streett therefore preserved his argument. See id.7
2.
The scope of the “persuade” provision.
We turn now to the scope of § 2251(a). The statute instructs, in pertinent part,
that “[a]ny person who employs, uses, persuades, induces, entices, or coerces any
minor to engage in . . . any sexually explicit conduct for the purpose of producing
any visual depiction of such conduct or for the purpose of transmitting a live visual
depiction of such conduct,” shall be punished under the statute. It is the word
7
The Government’s other arguments regarding waiver are unavailing because
either Mr. Streett did make the argument in question below, the caselaw undergirding
Mr. Streett’s argument had not been decided yet, see United States v. HernandezCalvillo, 39 F.4th 1297 (10th Cir. 2022); Harmon v. City of Norman, 981 F.3d 1141,
1153 (10th Cir. 2020), or the arguments on appeal are simply “more detailed” than
the arguments below (rather than being different arguments entirely), McIntosh,
29 F.4th at 654.
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“persuades” that Mr. Streett argues is overbroad, so our first task is to interpret the
scope of that word in the context of § 2251(a). See Williams, 553 U.S. at 293.
Starting with the plain text of § 2251(a), we have previously held that “[t]o
‘persuade’ is ‘to induce by argument, entreaty, or expostulation into some mental
position.’” United States v. Isabella, 918 F.3d 816, 831 (10th Cir. 2019) (quoting
United States v. Goetzke, 494 F.3d 1231, 1235 n.3 (9th Cir. 2007)). In defining the
term in this way, we drew a distinction between “asking” and “persuading.” Id.
at 836 (“ . . . the line between ‘asking’ and ‘persuading’ is imprecise, but a
reasonable jury could conclude [the defendant] crossed it.” (quoting United States v.
Tykarsky, 446 F.3d 458, 473 (3d Cir. 2006))).8 Merely asking a minor for a naked
photo, then, does not constitute persuasion under § 2251(a).9 Rather, there must be a
“calculated action” that involves “pressuring the child, physically or psychologically,
to engage in explicit conduct.” United States v. Heinrich, 57 F.4th 154, 159 (3d Cir.
8
It is possible that merely asking a minor for a nude picture might fall under
§ 2251(a) via some other term like “employs” or “uses.” We do not consider or
decide whether this is the case, though. Here, we only address the term “persuades.”
9
Mr. Streett argues that the distinction between asking and persuading means
that he did not violate § 2251(a). He directs us to the factual bases for counts three
through seven in his plea agreement, which state that he “asked for images of [the
minor’s] genitals” and other nude images, R. vol. 1, at 1284–85, and he points out
that the Government agreed that these were sufficient factual bases for the counts.
But Mr. Streett has never challenged the sufficiency of the evidence in this case, and
so we do not address any such argument here.
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2023). In other words, the defendant must overcome some resistance on the part of
the minor.10
Section 2251(a) raises potential First Amendment concerns if its proscriptions
extend beyond child pornography. This is because the First Amendment only permits
“restrictions upon the content of speech in a few limited areas”—one of which being
child pornography. United States v. Stevens, 559 U.S. 460, 468 (2010) (quoting
United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 817 (2000)). If
§ 2251(a) extends beyond child pornography, then, it potentially comes into conflict
with the First Amendment. Since we must adopt any interpretation of a statute which
is “fairly possible” in order to save the statute from unconstitutionality, Hansen,
143 S. Ct. at 1946 (quoting Jennings v. Rodriguez, 138 S. Ct. 830, 842 (2018)), we
interpret the scope of § 2251(a) as prohibiting the creation of sexually explicit
representations of minors only if such representations constitute child pornography
for purposes of the First Amendment.
This is a fair reading of the statute. As noted above, § 2251(a) prohibits any
person from persuading a minor to engage in “any sexually explicit conduct for the
purpose of producing any visual depiction of such conduct or for the purpose of
transmitting a live visual depiction of such conduct.” Although the phrase “child
pornography” is not used in § 2251(a), § 2251(a) is limited to conduct involving a
10
This is not to say that repeated requests cannot constitute persuasion.
Wearing a minor down by repeatedly asking for a sexually explicit photograph may
very well overcome the resistance of the minor.
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minor and the definitions section for the chapter defines “child pornography” in part
as “any visual depiction . . . where-- the production of such visual depiction involves
the use of a minor engaging in sexually explicit conduct[.]” 18 U.S.C. § 2256(8).
The visual depiction prohibited by § 2251(a) thus falls under the broader definition of
“child pornography” as defined by § 2256(8). Section 2251(a) prohibits certain
actions which would constitute a subset of that which constitutes “child
pornography” for First Amendment purposes. 11
In sum, we interpret the “persuades” provision of § 2251(a) as requiring
physical or psychological pressure to overcome a minor’s resistance to a requested
depiction of sexual conduct, and we interpret the scope of the provision as covering
only those depictions that would constitute “child pornography” which fall outside
the protections of the First Amendment.
3.
The potential overbreadth of the “persuades” provision.
Having interpreted the “persuades” provision to only cover the constitutional
definition of child pornography, we consider now whether there remains any risk of
substantial overbreadth. Mr. Streett raises three examples of potential overbreadth,
but we conclude that none of these examples demonstrate that § 2251(a) is
substantially overbroad.
11
The connection between § 2251(a) and the definition of “child pornography”
is further bolstered by § 2251(e), which enhances the mandatory minimum sentence
for any individual who has a previous conviction for “the production, possession,
receipt, mailing, sale, distribution, shipment, or transportation of child pornography.”
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Mr. Streett first argues that § 2251(a) implicates teenagers’ First Amendment
right to take sexually explicit depictions of themselves. Mr. Streett contends that
such depictions would not constitute child pornography because they are not
intrinsically related to the abuse of children. See Ashcroft v. Free Speech Coal.,
535 U.S. 234, 249 (2002). But if Mr. Streett is correct that these images would not
constitute child pornography, then the “persuades” provision of § 2251(a) is not
implicated because we have interpreted § 2251(a) as covering only those images
which constitute child pornography for First Amendment purposes. And if the
images do constitute child pornography, then such images enjoy no First Amendment
protection. See United States v. Stevens, 559 U.S. 460, 471 (2010). In either case,
protected speech is not implicated, and so this does not demonstrate substantial
overbreadth. Further, as we have held, the defendant must engage in some physical
or psychological pressure which overcomes the minor’s resistance.
Mr. Streett’s second example involves various hypothetical scenarios where an
adult might innocuously encourage a teenager to take a sexually explicit selfphotograph. For example, an adult might innocently convince a minor to engage in
body positivity by taking sexually explicit photographs of him or herself, or a scholar
could write an article arguing that teenagers have the First Amendment right to take
their own sexually explicit photographs. According to Mr. Streett, these acts would
constitute persuasion under § 2251(a). But, as explained, the term “persuades”
requires more than just asking for a sexually explicit photograph. See Isabella,
918 F.3d at 831. So, in these examples, an adult would not violate the “persuades”
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provision simply by suggesting that a minor can or should engage in body positivity;
the adult would have to overcome a child’s resistance using physical or psychological
pressure. Heinrich, 57 F.4th at 159–60. In all but the most aggressive scenarios,
then, would the adults in these hypotheticals fall within the scope of § 2251(a). Even
if such aggressive scenarios may arise, “[t]he ‘mere fact that one can conceive of
some impermissible applications of a statute is not sufficient to render it susceptible
to an overbreadth challenge.’” Williams, 553 U.S. at 303 (quoting Members of City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 800 (1984)). Mr.
Streett has therefore failed to demonstrate as a matter of “actual fact” that there are a
substantial number of such potentially unconstitutional applications of the
“persuades” provision of § 2251(a). Hicks, 539 U.S. at 122 (quoting N.Y. State Club
Assn., Inc., 487 U.S. at 14).
The final purported overbreadth issue concerns scienter. A plurality of circuits
have held that § 2251(a) does not require the defendant to know that the minor is a
minor, and have held that a mistake-of-age defense is not constitutionally mandated,
so an adult can be prosecuted for persuading a minor to take a sexually explicit
photograph online without the adult knowing that he or she is talking to a minor. See
United States v. Humphrey, 608 F.3d 955, 960 (6th Cir. 2010) (“ . . . a defendant’s
knowledge of the minor’s age is not an element of the offense.”) (collecting cases
from the Second, Fourth, Fifth, Seventh, Eighth, and Eleventh Circuits); see also
Sabus v. Pawnee Cnty. Bd. of Cnty. Commissioners, No. 22-6095, 2023 WL
3994386, at *4 (10th Cir. June 14, 2023) (unpublished) (citing Humphrey to support
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an officer’s determination of probable cause, without deciding the scienter issue).
Mr. Streett argues that this lack of a scienter requirement concerning the minor’s age,
combined with the lack of a mistake-of-age defense, renders § 2251(a) substantially
overbroad. We disagree.
In making this argument, Mr. Streett attempts to increase the number of
unconstitutional applications of § 2251(a) by claiming that the statute extends to the
potentially innocent defendant who reasonably believes he or she is persuading
someone who is over eighteen years old to create sexually explicit content, when in
fact the defendant is speaking to a minor. However, even assuming arguendo that the
scienter law of other circuits would be adopted by the Tenth Circuit, Mr. Streett has
not demonstrated substantial overbreadth. Even if § 2251(a) does not contain a
scienter requirement concerning the minor’s age, and even if we do not adopt a
mistake-of-age defense, the “persuades” provision still has an inherent scienter
requirement in which the defendant must intend to persuade the other party to
produce a depiction of sexually explicit conduct. See United States v. Esch, 832 F.2d
531, 536 (10th Cir. 1987) (“[B]y requiring proof of purposeful conduct,” § 2251(a)
“clearly contains a scienter requirement” that the defendant intended to persuade or
induce another to produce sexually explicit conduct); cf. Heinrich, 57 F.4th at 167
(“The defendant charged with producing child porn must both use a child to engage
in sexually explicit conduct and intend to take pictures of that conduct.”). This
scienter requirement limits the sweep of the provision.
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Moreover, Mr. Streett has not quantified the substantiality of the risk that an
adult will unknowingly persuade a minor to depict sexually explicit conduct, and the
record does not establish that the risk is so widespread as to implicate a substantial
amount of constitutionally protected behavior because of the alleged overbreadth of
the word “persuade.” Mr. Streett’s only evidence concerns the statistics of online
dating more generally and the phenomenon of one person pretending to be another
person online—neither of which demonstrate that there are a substantial number of
cases where an adult mistakenly persuades a minor to create a depiction of sexually
explicit conduct. Once again, “[t]he ‘mere fact that one can conceive of some
impermissible applications of a statute is not sufficient to render it susceptible to an
overbreadth challenge.’” Williams, 553 U.S. at 303 (quoting Taxpayers for Vincent,
466 U.S. at 800). Like above, Mr. Streett has failed to meet his burden of
establishing substantial overbreadth as a matter of “actual fact.” Hicks, 539 U.S.
at 122 (quoting N.Y. State Club Assn., Inc., 487 U.S. at 14).12
Lastly, to the extent that Mr. Streett’s examples do generate some
hypothetically unconstitutional applications of § 2251(a), such hypothetical situations
certainly have not been shown to constitute a substantial number of cases relative to
the constitutional breadth of § 2251(a). The “persuades” provision of § 2251(a)
12
It is possible that a future party might bring an as-applied challenge
concerning the requirement of a mistake-of-age defense for § 2251(a); we only hold
here that Mr. Streett’s factual scenario does not implicate enough constitutionally
protected behavior to render the “persuades” provision of § 2251(a) substantially
overbroad.
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plainly covers a wide swath of cases that fall outside the protection of the First
Amendment—like the one before us—in which an adult attempts to or does persuade
a minor into creating a visual depiction of sexually explicit conduct. See, e.g.,
Isabella, 918 F.3d at 834–35 (defendant attempted to persuade minor to send him
sexually explicit photographs); United States v. Kokayi, No. 19-4510, 2021 WL
3733010, at *10 (4th Cir. Aug. 24, 2021) (unpublished) (defendant persuaded minor
to send him live sexual videos), cert. denied, 142 S. Ct. 823 (2022); United States v.
Waqar, 997 F.3d 481, 487–88 (2d Cir. 2021) (defendant attempted to persuade minor
to send him sexual explicit material); United States v. Kelly, 609 F. Supp. 3d 85, 132
(E.D.N.Y. 2022) (defendant persuaded minors to produce taped sexual encounters).
Mr. Streett has therefore failed to show that any potentially unconstitutional
applications of the “persuades” provision of § 2251(a) are substantial relative to the
constitutional applications.13
13
Mr. Streett finally argues that the constitutional applications of § 2251(a)
can be enforced via some other term in the statute (e.g., “induce” and “entice”), and
so “[t]he availability of these alternative prosecutorial tools dilutes the force” of the
legitimate applications of the “persuade” term. United States v. Hernandez-Calvillo,
39 F.4th 1297, 1310 (10th Cir. 2022), abrogated on other grounds by Hansen, 143 S.
Ct. at 1942. This argument is unpersuasive. If the term “persuade” can be held to be
unconstitutionally overbroad due to the existence of these other terms, then the same
challenge can be lodged at each other similar term. And it is “not uncommon in
criminal statutes” for there to be some overlap between provisions, even if there is
potential superfluity. Loughrin v. United States, 573 U.S. 351, 358 n.6 (2014).
Congress is permitted to use various verbs to cover the field of prohibited conduct as
best it can. We therefore decline to deem one verb in a criminal statute substantially
overbroad solely because Congress used other similar verbs in the same statute.
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III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s denial of Mr.
Streett’s motions to suppress and the denial of Mr. Streett’s motion to dismiss
counts 3 through 7 of his indictment.
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United States v. Streett, No. 22-2056
EID, Circuit Judge, concurring in part and concurring in the judgment.
I join the majority opinion with the exception of Part II.B. I agree with the
majority that 18 U.S.C. § 2251(a) is not overbroad under the First Amendment, but I
would take a different path to reach that result. Because § 2251(a) on its face
criminalizes only acts intended to produce child pornography, it is unnecessary for us to
evaluate the scope of the word “persuades.”
Child pornography is not protected by the First Amendment. By statute, “‘child
pornography’ means any visual depiction . . . of sexually explicit conduct, where . . . the
production of such visual depiction involves the use of a minor engaging in sexually
explicit conduct.” 18 U.S.C. § 2256(8). The First Amendment does not protect “material
depicting actual children engaged in sexually explicit conduct.” United States v.
Williams, 553 U.S. 285, 293 (2008). Accordingly, the Constitution does not protect child
pornography, and Congress has criminalized it. 18 U.S.C. § 2252A.
Congress has also criminalized taking certain steps to create child pornography.
18 U.S.C. § 2251(a). At issue in this case is § 2251(a), which declares that “[a]ny person
who employs, uses, persuades, induces, entices, or coerces any minor to engage
in . . . any sexually explicit conduct for the purpose of producing any visual depiction of
such conduct or for the purpose of transmitting a live visual depiction of such conduct,
shall be punished . . . .” Id. In other words, § 2251(a) criminalizes using speech to cause
any minor to engage in sexually explicit conduct in order to produce or to transmit child
pornography.
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Like child pornography, the speech criminalized by § 2251(a) is not protected by
the First Amendment. The First Amendment does not protect speech “used as an
essential and inseparable part of a grave offense against an important public law.”
Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). Accordingly, “[i]t has
never been deemed an abridgement of freedom of speech or press to make a course of
conduct illegal merely because the conduct was in part initiated, evidenced, or carried out
by means of language, either spoken, written, or printed.” United States v. Hansen,
143 S. Ct. 1932, 1947 (2023) (quoting Giboney, 336 U.S. at 502). Thus, because
“[s]peech intended to bring about a particular unlawful act has no social value,” such
speech, like the underlying unlawful act, “is unprotected” by the First Amendment. Id.
That is why, just this year, the Supreme Court found unprotected any speech “that solicits
or facilitates a criminal violation, like crossing the border unlawfully or remaining in the
country while subject to a removal order.” Id. (emphasis in original).
The speech criminalized by § 2251(a) is likewise unprotected. The speech
covered by § 2251(a) is “an essential and inseparable part” of the “grave offense” of
attempting to create child pornography. Giboney, 336 U.S. at 502. It is thus outside the
scope of the First Amendment. Cf. Williams, 553 U.S. at 297–98 (“[O]ffers to provide or
requests to obtain . . . child pornography involving actual children . . . enjoy no First
Amendment protection.”).
Therefore, we need not decide the scope of the word “persuades.” It does not
matter whether an adult “merely ask[s]” a child to create child pornography or instead
uses “physical or psychological pressure to overcome a minor’s resistance.” Contra Maj.
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Op. at 20, 22. Both are criminal. Neither is protected by the First Amendment. In sum,
there is no overbreadth problem here because simply to ask a child to create child
pornography is not speech protected by the First Amendment. Because the majority
appears to adopt the defendant’s incorrect premise that “merely asking” a child to create
child pornography would constitute protected speech within the overbreadth analysis, I
respectfully concur only in the judgment as to Part II.B.
3
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UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT
Christopher M. Wolpert
Clerk of Court
Byron White United States Courthouse
1823 Stout Street
Denver, Colorado 80257
(303) 844-3157
Clerk@ca10.uscourts.gov
October 05, 2023
Jane K. Castro
Chief Deputy Clerk
Ms. Amy Senia
Office of the Federal Public Defender
Districts of Colorado and Wyoming
633 Seventeenth Street, Suite 1000
Denver, CO 80202
RE:
22-2056, United States v. Streett
Dist/Ag docket: 1:14-CR-03609-JB-1
Dear Counsel:
Enclosed is a copy of the opinion of the court issued today in this matter. The court has
entered judgment on the docket pursuant to Fed. R. App. P. Rule 36.
Pursuant to Fed. R. App. P. 40(a)(1), any petition for rehearing must be filed within 14
days after entry of judgment. Please note, however, that if the appeal is a civil case in
which the United States or its officer or agency is a party, any petition for rehearing must
be filed within 45 days after entry of judgment. Parties should consult both the Federal
Rules and local rules of this court with regard to applicable standards and requirements.
In particular, petitions for rehearing may not exceed 3900 words or 15 pages in length,
and no answer is permitted unless the court enters an order requiring a response. See Fed.
R. App. P. Rules 35 and 40, and 10th Cir. R. 35 and 40 for further information governing
petitions for rehearing.
Please contact this office if you have questions.
Sincerely,
Christopher M. Wolpert
Clerk of Court
cc:
Paige Messec
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Case 1:14-cr-03609-JB Document 177 Filed 11/27/18 Page 1 of 181
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
UNITED STATES OF AMERICA,
Plaintiff,
vs.
No. CR 14-3609 JB
BENTLEY A. STREETT,
Defendant.
MEMORANDUM OPINION AND ORDER
THIS MATTER comes before the Court on: (i) the Defendant’s Motion to Suppress
Evidence, filed December 1, 2017 (Doc. 78)(“Motion”); (ii) the Defendant’s Supplemental Motion
to Suppress All Evidence Seized and Any Fruits of the Poisonous Tree Obtained as a Result of the
Unlawful Search, filed July 24, 2018 (Doc. 141)(“Supp. Motion”); (iii) the Defendant Bentley
Streett’s Motion to Suppress Proposed Findings of Fact and Conclusions of Law, filed November
3, 2018 (Doc. 174)(“Streett’s Proposed Findings”); and (iv) the United States’ Proposed Findings
of Fact and Conclusions of Law (September 11, 2018 Evidentiary Hearing), filed November 2,
2018 (Doc. 168)(“United States’ Proposed Findings”). The Court held an evidentiary hearing on
September 11, 2018. The primary issues are: (i) whether the Grand Jury Subpoena Duces Tecum
at 1 (issued November 4, 3013), filed July 24, 2018 (Doc. 141-1)(“Subpoena”), constitutes a search
under the Fourth Amendment to the Constitution of the United States; (ii) whether the Subpoena
violates New Mexico law and the Due Process Clause of the Fifth and Fourteenth Amendments to
the Constitution of the United States; (iii) whether the Affidavit for Search Warrant (undated),
filed July 24, 2018 (Doc. 141-2)(“First Affidavit”), provides probable cause to believe that
evidence of Streett’s alleged criminal activity would be found in his cellular telephone records;
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(iv) whether, even if the Search Warrant at 4 (issued February 12, 2014), filed July 24, 2018
(Doc. 141-2)(“First Warrant”), issued based on the First Affidavit, lacks probable cause, Bernalillo
County Sheriff’s Office Detective Kyle Hartsock relied on the First Warrant in good faith when
he obtained Streett’s cellular telephone records; (v) whether the First Affidavit violates the Due
Process Clause, because, as Streett argues, it lacks substantial evidence to support probable cause
as required by New Mexico law; (vi) whether the Affidavit for Search Warrant (executed February
24, 2014), filed December 1, 2017 (Doc. 78-1)(“Second Affidavit”), provides probable cause to
believe that evidence of Streett’s alleged criminal activity would be found at the residence at 4620
Plume Road NW, Albuquerque, New Mexico 87120 (“4620 Plume residence”); (vii) whether,
even if the Search Warrant at 14 (issued February 24, 2014), filed August 15, 2018 (Doc. 1445)(“Second Warrant”), issued based on the Second Affidavit, lacks probable cause, Hartsock relied
on the Second Warrant in good faith when he searched the 4620 Plume residence; (viii) whether,
even if the Second Warrant lacks probable cause and Hartsock did not execute the Second Warrant
in good faith, law enforcement inevitably would have obtained a warrant to search the 4620 Plume
residence; and (ix) whether, even if the Second Warrant contains an incurable defect, even if
Hartsock did not execute the Second Warrant in good faith, and even if law enforcement would
not have inevitably obtained a search warrant for the 4620 Plume residence, Hartsock would have
discovered the identities of the charged victims. The Court will deny the Motion and the Supp.
Motion. The Court holds that the Subpoena is not a search under the Fourth Amendment, because
of the third-party doctrine. The Court concludes that the Subpoena does not violate New Mexico
law, because a grand jury issued it after presentment of evidence, and that the Subpoena does not
violate the Due Process Clause, for the same reasons it does not violate the Fourth Amendment or
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New Mexico law. The Court holds that the First Affidavit provides probable cause to search
Streett’s cellular telephone records and, even if it does not provide probable cause, that Hartsock
relied on the First Warrant in good faith. Finally, the Court holds that the Second Affidavit does
not provide probable cause to search the 4620 Plume Residence, but the Court will not suppress
the resulting evidence because it concludes that: (i) Hartsock acted in good faith when he executed
the Second Warrant; (ii) Hartsock would have inevitably discovered the evidence, because he
would have obtained a valid warrant had the Second Warrant not issued; and (iii) Hartsock would
have inevitably discovered the victims’ identities through Streett’s telephone records.
Accordingly, the Court will deny the Motion and Supp. Motion, and will not exclude the telephone
records or evidence seized from the 4620 Plume residence from the trial.
FACTUAL BACKGROUND
Rule 12(d) of the Federal Rules of Criminal Procedure requires the Court to state its
essential findings on the record when deciding a motion that involves factual issues. See Fed. R.
Crim. P. 12(d) (“When factual issues are involved in deciding a motion, the court must state its
essential findings on the record.”). The findings of fact in this Memorandum Opinion and Order
shall serve as the Court’s essential findings for rule 12(d) purposes. The Court makes these
findings under the authority of rule 104(a) of the Federal Rules of Evidence, which requires a judge
to decide preliminary questions relating to the admissibility of evidence, including the legality of
a search or seizure and the voluntariness of an individual’s confession or consent to a search. See
United States v. Merritt, 695 F.2d 1263, 1269-70 (10th Cir. 1982). In deciding such preliminary
questions, the other rules of evidence, except those with respect to privileges, do not bind the
Court. See Fed. R. Evid. 104(a) (“The court must decide any preliminary question about whether
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a witness is qualified, a privilege exists, or evidence is admissible. In so doing, the court is not
bound by evidence rules, except those on privilege.”). Thus, the Court may consider hearsay in
ruling on a motion to suppress. See United States v. Ramirez, 388 F. App’x 807, 810 (10th Cir.
2010)(unpublished)(“It is beyond reasonable debate that Ramirez’s counsel were not ineffective
in failing to make a Confrontation Clause challenge to the use of the confidential informant. The
Supreme Court has not yet indicated whether the Confrontation Clause applies to hearsay
statements made in suppression hearings.”);1 United States v. Garcia, 324 F. App’x 705, 708 (10th
Cir. 2009)(unpublished)(“We need not resolve whether Crawford [v. Washington, 541 U.S. 36
(2004)]’s[2] protection of an accused’s Sixth Amendment confrontation right applies to suppression
hearings, because even if we were to assume this protection does apply, we would conclude that
the district court’s error cannot be adjudged ‘plain.’”); United States v. Merritt, 695 F.2d at 1269
(“The purpose of the suppression hearing was, of course, to determine preliminarily the
admissibility of certain evidence allegedly obtained in violation of defendant’s rights under the
1
United States v. Ramirez is an unpublished opinion, but the Court can rely on an
unpublished opinion for the United States Court of Appeals for the Tenth Circuit to the extent its
reasoned analysis is persuasive in the case before it. See 10th Cir. R. 32.1(A) (“Unpublished
opinions are not precedential, but may be cited for their persuasive value.”). The Tenth Circuit
has stated: “In this circuit, unpublished orders are not binding precedent, . . . and . . . citation to
unpublished opinions is not favored. However, if an unpublished opinion . . . has persuasive value
with respect to a material issue in a case and would assist the court in its disposition, we allow a
citation to that decision.” United States v. Austin, 426 F.3d 1266, 1274 (10th Cir. 2005). The
Court concludes that United States v. Ramirez, United States v. Garcia, United States v. LopezCarillo, United States v. Beck, United States v. Reed, United States v. Manning, and United States
v. Welch have persuasive value with respect to material issues, and will assist the Court in its
disposition of this Memorandum Opinion and Order.
2
Crawford v. Washington stands for the proposition that testimonial out-of-court
statements against an accused are inadmissible at a criminal trial unless the declarant is unable to
testify and the defendant had a previous opportunity to cross examine the declarant. See 541 U.S.
at 53-54.
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Fourth and Fifth Amendments. In this type of hearing the judge had latitude to receive it,
notwithstanding the hearsay rule.”). Cf. United States v. Hernandez, 778 F. Supp. 2d 1211, 1226
(D.N.M. 2011)(Browning, J.)(concluding that “Crawford v. Washington does not apply to
detention hearings”).3
3
Although Streett does not object under Crawford v. Washington to any evidence in this
case, the Court concludes that Crawford v. Washington does not apply to pretrial suppression
hearings. There is no precedent from the Supreme Court of the United States or the Tenth Circuit
squarely deciding this issue, so the Court looks first to persuasive authority from other Courts of
Appeals. The United States Court of Appeals for the Seventh Circuit has concluded that, where
“the [district] court considered the [hearsay] statement at a suppression hearing, not at Ebert’s
trial[,] the Confrontation Clause was not implicated.” Ebert v. Gaetz, 610 F.3d 404, 414 (7th Cir.
2010)(Tinder, J., joined by Posner and Rovner, JJ.)(citing United States v. Harris, 403 U.S. 573,
584 (1971)(noting that Confrontation Clause precedent “seems inapposite to ex parte search
warrant proceedings under the Fourth Amendment”)). The Tenth Circuit has concluded that “the
restriction in the Confrontation Clause against admission of testimonial statements, like Agent
Swihart’s affidavit, is not implicated” in a suppression hearing and that, even if the statements
“constituted hearsay, the same rule allowing hearsay evidence in suppression hearings applies.”
United States v. Lopez-Carillo, 536 F. App’x 762, 768-69 (10th Cir. 2013)(unpublished). The
United States Court of Appeals for the Third Circuit has held it was not plain error for the district
court to admit hearsay statements during a suppression hearing, because “[t]he Supreme Court has
never suggested . . . that the Confrontation Clause applies during a pre-trial suppression hearing.”
United States v. Robinson, 663 F. App’x 215, 218 (3d Cir. 2016)(unpublished)(citing Crawford v.
Washington, 541 U.S. at 53-54; United States v. Raddatz, 447 U.S. 667, 679 (1980)(“This Court
on other occasions has noted that the interests at stake in a suppression hearing are of a lesser
magnitude than those in the criminal trial itself. At a suppression hearing, the court may rely on
hearsay . . . even though that evidence may not be admissible at trial.”); Barber v. Page, 390 U.S.
719, 725 (1968)(“The right to confrontation is basically a trial right.”)). The Supreme Court has
“specifically rejected the claim that defendant’s right to confrontation under the Sixth Amendment
and Due Process Clause of the Fourteenth Amendment had in any way been violated” where, at
the suppression hearing, “police proved probable cause for the [defendant’s] arrest by testifying to
the out-of-court statements of an unidentified informer” and “also made clear that there was no
contrary rule governing proceedings in the federal courts.” United States v. Matlock, 415 U.S.
164, 174-75 (1974)(discussing McCray v. Illinois, 386 U.S. 300 (1967)). This caselaw points the
Court to concluding that Crawford v. Washington does not apply to pretrial suppression hearings.
Crawford v. Washington makes testimonial out-of-court statements against an accused
inadmissible at trial unless certain requirements are met, but the question whether these statements
should be suppressed from trial is substantially and procedurally different. A suppression hearing
is held for the limited purpose of determining whether evidence should be suppressed from trial
because of law enforcements’ constitutional violations. See Gannett Co. v. DePasquale, 443 U.S.
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1.
The Online Tip.
1.
On October 31, 2013, the National Center for Missing and Exploited Children
(“NCMEC”)4 received an online tip stating that Streett “requested a nude photograph by text
message from my 15 year old daughter.” CyberTipline Report at 1, 3 (dated October 31, 2013),
filed August 15, 2018 (Doc. 144-1)(“NCMEC Tip”).5
2.
The NCMEC Tip lists the “Incident Time” as October 21, 2013, 5:00 UTC.6
NCMEC Tip at 3.
368, 378 (1979)(“The whole purpose of such [suppression] hearings is to screen out unreliable or
illegally obtained evidence and insure that this evidence does not become known to the jury.”).
Unlike trial, there is no risk of incarceration or adjudication of guilt at a suppression hearing, and
a suppression hearing is not a prosecution. The Court therefore concludes that Crawford v.
Washington has no place in a suppression hearing.
4
Congress established the private, non-profit organization NCMEC in 1984 with the
Missing Children’s Assistance Act. See National Center for Missing and Exploited Children,
Wikipedia, https://en.wikipedia.org/wiki/National_Center_for_Missing_and_Exploited_Children
(last visited Nov. 16, 2018). The Justice Department primarily funds NCMEC to provide
information to the public and to “assist in locating missing children and to raise public awareness
about ways to prevent child abduction, child sexual abuse and child pornography.” National
Center for Missing and Exploited Children, supra. NCMEC manages the CyberTipline, which
allows the general public and service providers to report incidents of child exploitation and suicide
risk, among other things. See Transcript of Motion to Suppress Proceedings at 82:11-24
(Whitsitt)(taken September 11, 2018), filed September 28, 2018 (Doc. 159)(“Tr.”)
5
NCMEC generated the NCMEC Tip upon receipt of the information from the submitter,
and then NCMEC provided additional information, such as an email received from the submitter
and data that NCMEC “gathered from searches on publicly-available, open-source websites.”
NCMEC Tip at 6. See Tr. at 11:13-25 (Whitsitt).
6
This contradicts Hartsock’s testimony at the hearing that Streett’s request “could have
happened months” or “a year” or “several years before” the tipster reported it. Tr. at 147:6-16
(Zimmerman, Hartsock). Streett’s Proposed Findings do, however, note that the NCMEC Tip
provides the date of the incident. See Streett’s Proposed Findings ¶ 6, at 2 (citing Tr. at 16;
NCMEC Tip; Office of the Attorney General of New Mexico Investigations Division Confidential
Matter Report (undated)(submitted to the Court at the September 11, 2018, evidentiary hearing as
Defendant’s Hearing Exhibit E)).
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3.
NCMEC assigns its cyber tips priority levels from 1 to 4, with 1 being the highest-
priority and 4 being the lowest, based on the threat or danger to the child victim. See Transcript
of Motion to Suppress Proceedings at 13:17-25 (Zimmerman, Whitsitt)(taken September 11,
2018), filed September 28, 2018 (Doc. 159)(“Tr.”).
4.
The NCMEC Tip states that it has a priority level of 3, the second-lowest priority
level which NCMEC assigns its cyber tips and the lowest level assigned to submissions from an
individual person, and that “[a]dditional information [is] required to determine possible risk.”
NCMEC Tip at 1. See Tr. at 13:17-24 (Zimmerman, Whitsitt); id. at 17:9-18 (Zimmerman,
Whitsitt).
5.
The NCMEC Tip was not provided confidentially; the submitter provides her name
and provides her cellphone number while writing: “[My daughter] does not know that I saw the
text and am reporting it. I do not want the subject alerted.”7 NCMEC Tip at 3 (redacting the
“Submitter” portion from the copy filed with the Court). See Tr. at 23:15-24 (Zimmerman,
Whitsitt)(stating that there is no “indication that the mother wished to remain confidential”); id. at
96:8-10 (Mease, Hartsock)(stating that the submitter provided her name and it is redacted).
6.
The submitter states that “[i]t does not appear that my daugher [sic] sent this man
any photos as he requested. My concern is that he is on-line solicitating [sic] nude photos from
other minor children and could possibly have received some.” NCMEC Tip at 4.
7
The United States’ Proposed Findings state that the submitter “requested that law
enforcement not alert the suspect.” United States’ Proposed Findings ¶ 2, at 2 (citing NCMEC Tip
at 3). The submitter, however, used the term “subject,” which is ambiguous and could refer to
Streett or the daughter, see infra ¶ 37, and therefore the Court cannot make a factual determination
as to what the submitter meant by “subject” and will not adopt the United States’ Proposed Finding
on this point.
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7.
The submitter also provides Streett’s address as “Albuquerque, NM United States,”
his telephone number as “(505) 242-2677,” and his age as approximately thirty-eight, but does not
provide how she knows this information.8 NCMEC Tip at 3.
8.
The Tip’s submitter later emailed “NCMEC’s general email,” saying “I just sent a
report of child exploitation in on-line. I realized after the fact that I entered the wrong phone
number for the subject” and, after stating the original number provided is a contact number for the
Albuquerque Police Department, provided Streett’s correct telephone number as “505-974-9704”.
NCMEC Tip at 6.
9.
According to a NCMEC note on the Tip, the first “provided number for the reported
user appears to result back to the police department” and, per the submitter’s email, the correct
“number is: 505-974-9704.” NCMEC Tip at 6-7.
10.
The note continues to provide an “ITACT”9 for 505-974-9704, which provides the
subscriber name as “STREETT BENTLEY,” the “Phone In-Service Period: Active for 1 month or
8
While Hartsock testified that “[t]here was nothing in that tip in which the CI identified the
last name of Mr. Street,” because that information “came from the further NCMEC law
enforcement investigation,” Tr. at 167:22-1 (Zimmerman, Hartsock), the NCMEC Tip states that
“[t]he information appearing in Section A is information received in the original submission” and
all the information “is voluntary and undertaken at the initiative of the Reporting Person,” except
the “Incident Type” and “Incident Time,” NCMEC Tip at 3. Thus, because Streett’s name,
address, telephone number, and approximate age were all provided in “Section A,” this must be
information provided by the submitter, and not later populated by NCMEC. NCMEC Tip at 3.
Accordingly, the Court does not adopt Streett’s Proposed Finding ¶ 15, at 15.
9
“ITACT” is an “Investigative Web-based application” that, with a ten-digit phone number,
“provides access to phone subscriber information and the current carrier if a phone has not been
competitively ported (when someone changes their service carrier but retains the phone number),”
and “also provides additional phone data intelligence including whether a phone is prepaid and the
in-service period.” Neustar iTACT, Neustar Comm., https://www.communications.neustar/
resources/product-literature/itact-solutionsheet (last visited Oct. 26, 2018).
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less,” the carrier as T-Mobile USA, and the “Street Address: Albuquerque NM 87102-3472.”
NCMEC Tip at 7.
11.
The note also provides a “TLO”10 for Streett, providing a date of birth of
(redacted)/1975, other names and dates of birth associated with him, and associated telephone
numbers besides the 974-9704 number: 505-550 (remainder redacted), a mobile; 505349 (remainder redacted), but does not say with what type of telephone this number is associated;
and 505-877(redacted), a landline. NCMEC Tip at 8.
12.
The TLO also notes that Streett is a deceased individual’s social security number,
and provides the social security number as (redacted)-6364. See NCMEC Tip at 8.
13.
There are two “Possible Criminal Records” for Streett in the note as well, NCMEC
Tip at 8, but they do not indicate “a previous significant criminal history,” Tr. at 23:8-10
(Zimmerman, Whitsitt). See id. at 46:8-13 (Zimmerman, Whitsitt)(stating “there was no indication
of any criminal history of” Streett being a sex offender).
14.
The note concludes with an address summary, providing a list of eight addresses,
with the only non-redacted address being the 4620 Plume residence with associated dates of
“4/12/2004 to 10/30/2013.” NCMEC Tip at 9.
10
“TLO” stands for “TLOxp,” a service which “filters through a massive repository of
public and proprietary data” to provide “detailed reports filled with actionable data,” including
“[n]ames, addresses, aliases, emails, phones, places of employment,” and criminal history. About
TLOxp, TransUnion & Alternative Data Solutions, Inc., https://www.tlo.com/about-tloxp# (last
visited Oct. 26, 2018). TLO is a subscriber-based service, so not everybody can access it. See Tr.
at 19: 14-17 (Whitsitt, Zimmerman); id. at 156:3-22 (Zimmerman, Hartsock)(discussing how,
although TLO is “not an open source,” the TLO provides only publicly available information, such
as “mortgage information, public utility records, [and] vehicle registration,” which “anyone in the
public could get”).
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15.
Another NCMEC note on the Tip states: “The victim did not appear to engage with
the reported user. Based on the user, I will send to the NM ICAC.”11 NCMEC Tip at 10.
16.
The NMCEC Tip concludes by saying it “was made available to the Law
Enforcement Agencies listed below” and then lists the New Mexico Attorney General’s Office -naming special agent Anthony M. Maez as the assigned investigator -- and the Bernalillo County
Sheriff’s Office -- listing detective Kyle Hartsock as the assigned investigator. NCMEC Tip at 11.
17.
Special Agent Jon Whitsitt began his career in law enforcement in June 2006, see
Tr. at 9:14-15 (Whitsitt), and worked in the Attorney General’s Office as a criminal analyst,
“primarily focus[ing] on cyber tip management,” from approximately September 2011, until
approximately September 2014, Tr. at 10:9-21 (Zimmerman, Whitsitt).
See id. at 53:22
(Whitsitt)(clarifying that he did not leave the Attorney General’s Office in 2013 as previously
stated).
18.
The position of criminal analyst is not one of “sworn law enforcement capacity”; it
is a civilian position. Tr. at 34:5-7 (Whitsitt, Zimmerman).
19.
At some date which Whitsitt could not recall, he transitioned to the position of
special agent -- which is a law enforcement officer position. See Tr. at 54:3-11 (Whitsitt,
Zimmerman).
11
“ICAC” stands for “Internet Crimes Against Children,” which is a national task force
“engaged in proactive and reactive investigations and prosecutions of persons involved in child
abuse and exploitation involving the Internet.” Home, ICAC: Internet Crimes Against Child. Task
Force Program, https://www.icactaskforce.org/Pages/Home.aspx (last visited Oct. 25, 2018). The
New Mexico Attorney General operates the ICAC task force in New Mexico. See Second
Affidavit at 4.
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20.
Whitsitt currently works at the Gallup Police Department.
See Tr. at 9:10
(Whitsitt).
21.
Whitsitt was a special agent when investigating the NCMEC Tip. See NCMEC Tip
at 11 (releasing the tip on November 1, 2013, to the Attorney General’s Office); Letter to Custodian
of Records at T-Mobile from Special Agent Jon R. Whitsitt at 1 (dated November 1,
2013)(submitted to the Court at the September 11, 2018 evidentiary hearing as Defendant’s
Hearing Exhibit B)(“Preservation Letter”)(showing Whitsitt’s signature on November 1, 2013, as
“Jon R. Whitsitt, Special Agent - ICAC”).
22.
Whitsitt had special training as a criminal analyst to review NCMEC’s cyber tips:
he was “trained in [Internet Crimes Against Children] procedures and NCMEC, and reading those
tip reports,” and also “attended training at the [NCMEC office] in cyber tip management.” Tr. at
16:8-16 (Zimmerman, Whitsitt).
23.
“[C]yber tip management” refers to triaging the tips that the New Mexico Attorney
General’s Internet Crimes Against Children task force receives from NCMEC -- after NCMEC
has screened them -- as New Mexico’s “ICAC coordinator.” Second Affidavit at 4. See Tr. at
10:20-11:5 (Zimmerman, Whitsitt); First Affidavit at 2.
24.
NCMEC asks the ICAC coordinators to “validate the information” in the cyber tips,
because it forwards every tip received without “vouch[ing] for the accuracy of any of the
information.” Tr. at 33:6-14 (Zimmerman, Whitsitt).
25.
Whitsitt’s triage process is first “figuring out the most information [he] could
without launching a full-fledged investigation, and then presenting the information to [his]
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supervisor who would then assign the case to the appropriate law enforcement agency.” Tr. at
11:4-9 (Whitsitt).
26.
Whitsitt “looked at the facts or the elements of the cyber tip,” and, if he believed
that a child “is in immediate threat or danger,” that tip would take “an ultimate priority.” Tr. at
13:6-12 (Whitsitt).
27.
Whitsitt would receive variable numbers of cyber tips on any given day -- some
days no tips, other days up to fourteen tips -- but he could not recall how many cyber tips he
received on the day that he got the NCMEC Tip. See Tr. at 12:23-13:3 (Whitsitt, Zimmerman).
28.
Whitsitt could not recall what priority NCMEC assigned the Tip in this case. See
Tr. at 15:1-4 (Zimmerman, Whitsitt).12
29.
The NCMEC Tip was the only tip about Streett that Whitsitt received. See Tr. at
45:19-23 (Zimmerman, Whitsitt); id. at 46:1-7 (Zimmerman, Whitsitt)(discussing that more tips
could make an investigation a higher priority).
12
Streett’s Proposed Findings state that “Whitsitt did not recall the cybertip report in this
case,” Streett’s Proposed Findings ¶ 5, at 2 (citing Tr. at 15), but this is an inaccurate representation
of Whitsitt’s testimony, because he was asked if he recalled the NCMEC Tip’s priority level, not
if he recalled the Tip generally. This is the relevant exchange, during direct examination of
Whitsitt by Mr. Zimmerman:
Q.
Do you recall this particular cyber tip involving Mr. Streett, what priority
level was given by NCMEC?
A.
No, sir, I do not.
Tr. at 15:1-4 (Zimmerman, Whitsitt). The Court concludes that it is more accurate to read this
exchange as showing that Whitsitt did not recall the NCMEC Tip’s priority level, and therefore
does not adopt Streett’s Proposed Finding that Whitsitt did not recall the Tip. See Streett’s
Proposed Findings ¶ 5, at 2 (citing Tr. at 15).
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30.
As to the NCMEC Tip, Whitsitt completed
an initial assessment on the information provided, which included accessing a
system called TLO, which provides very basic information such as date of birth,
Social Security numbers, previous addresses possible employment history, as well
as running an NCIC criminal check; that checks for current wants/warrants, as well
as Department of Motor Vehicle records. [He] also check[ed] employment history
to see if [the Attorney General’s Office] ha[s] a current employer on file or previous
employers.
Tr. at 18:25-19:11 (Whitsitt). See Office of the Attorney General of New Mexico Investigations
Division Confidential Matter Report at 2 (undated)(submitted to the Court at the September 11,
2018, evidentiary hearing as Defendant’s Hearing Exhibit E)(“AG Report”)(describing the
investigative actions Whitsitt took).
31.
Nothing “raised a red flag” during Whitsitt’s investigation of the NCMEC Tip. Tr.
at 14:16-18 (Zimmerman, Whitsitt). See id. at 46:1-16 (Zimmerman, Whitsitt)(discussing that, if
there had been multiple tips involving Streett or if he had a criminal history of being a sex offender,
Whitsitt would have had to assign the NCMEC Tip a higher priority).
32.
Whitsitt stated that there was not probable cause to believe that sexual exploitation
had occurred, see Tr. at 25:21-26:7 (Whitsitt, Zimmerman, Mease, Court), but believed that, if the
information in the NCMEC Tip were true, a crime had been committed which justified further
investigation, see Tr. at 57:11-24 (Mease, Whitsitt).13
13
Streett’s Proposed Findings provide that “Whitsitt had no indication that a crime had been
committed,” Streett’s Proposed Findings ¶ 22, at 4 (citing Tr. at 22, 31), and that he “did not believe
he had enough probable cause to justify any further investigation,” Streett’s Proposed Findings
¶ 23, at 4 (citing Tr. at 25-26, 38). The Court concludes this is not a fair representation of the
hearing and thus does not incorporate these Proposed Findings. Mr. Zimmerman first points
Whitsitt to the “additional information” on page four of the NCMEC Tip:
Q.
And what does that say?
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A.
It reads, “It does not appear that my daughter sent this man any photos as
he requested. My concern is that he is online soliciting nude photos from
other minor children and could possibly have received some.”
Q.
So at that time you had no indication of a crime that had been committed?
....
A.
No, I did not.
Tr. at 22:6 (Zimmerman); id. at 22:9-21 (Zimmerman, Whitsitt)(objection and ruling omitted). It
appears from this questioning that Whitsitt is only answering whether he had an indication that a
crime had been committed from the portion of the NCMEC Tip he read, because of his later
testimony regarding his preparing the Subpoena:
Q.
You did not on your own decide that a grand jury subpoena was needed?
A.
No, I would do that for most cases.
Q.
I’m sorry? Do what?
A.
Obtain grand jury subpoenas, if it appeared that possible or alleged sexual
exploitation had occurred.
Q.
Did you have any indication here -- you had --
A.
Possible, yes.
Q.
Maybe?
A.
Possible.
Q.
Not enough to satisfy you or any probable cause that would justify any
further investigation?
....
A.
Not at that point, no.
Tr. at 25:12-26:4 (Zimmerman, Whitsitt)(objection and ruling omitted). This testimony, combined
with Ms. Mease’s cross-examination cited supra ¶ 31, shows that Whitsitt believed it possible that
“sexual exploitation had occurred,” but did not have probable cause showing that sexual
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33.
The crime “[s]exual exploitation of children” is contained in N.M. Stat. Ann. § 30-
6A-3, which provides, in the relevant parts, that
[i]t is unlawful for a person to intentionally possess any obscene visual or print
medium depicting any prohibited sexual act or simulation of such an act if that
person knows or has reason to know that the obscene medium depicts any
prohibited sexual act or simulation of such act and if that person knows or has
reason to know that one or more of the participants in that act is a child under
eighteen years of age. . . . It is unlawful for a person to intentionally cause or
permit a child under eighteen years of age to engage in any prohibited sexual act or
simulation of such an act if that person knows, has reason to know or intends that
the act may be recorded in any visual or print medium or performed publicly.
N.M. Stat. Ann. § 30-6A-3(A), (D).
34.
“Prohibited sexual act” is defined in N.M. Stat. Ann. § 30-6A-2, and includes
“masturbation” and “lewd and sexually explicit exhibition with a focus on the genitals or pubic
area of any person for the purpose of sexual stimulation.” N.M. Stat. Ann. § 30-6A-2(A)(3), (5).
35.
Whitsitt did not speak with the submitter’s daughter -- identified as M.Y. -- to
determine her relationship with Streett or the nature of the text message communication with him,
and did not speak with the submitter to check the credibility of the NCMEC Tip, see Tr. at 27:6-
exploitation had occurred. Tr. at 25:16-17 (Whitsitt). Whitsitt clarifies that, when he sought the
Subpoena, he was still investigating whether a crime had been committed:
Q.
You’ve indicated before there was insufficient evidence that the crime of
criminal sexual communication or any crime had been committed at this
point?
A.
At that point the case was still under investigation, so we did not know
whether or not that crime had been committed yet. It was still under
investigation.
Tr. at 31:2-9 (Zimmerman, Whitsitt). Accordingly, the Court does not adopt Streett’s Proposed
Findings on this point, and concludes that its own ¶ 31 is more accurate.
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12 (Zimmerman, Whitsitt), although he could have called them, see Tr. at 66:10-14 (Zimmerman,
Whitsitt).
36.
It was not Whitsitt’s job to “reach out to witnesses and conduct interviews” when
conducting cyber tip maintenance, and nobody else at the Attorney General’s Office does so when
they are doing cyber tip maintenance. Tr. at 59:14-24 (Mease, Whitsitt).
37.
Whitsitt acted under the assumption that the NCMEC Tip’s submitter did not want
Streett alerted, see Tr. at 21:21-25 (Whitsitt), because of the Tip’s language “I do not want the
subject alerted,” NCMEC Tip at 3. ----See also Tr. at 59:1-5 (Whitsitt)(acknowledging that the word
“subject” is ambiguous and could refer to either the submitter’s daughter or to Streett); id. at 65:812 (Zimmerman, Whitsitt)(reiterating it is unclear who “subject” referred to).
38.
Whitsitt then “prepared a subpoena duces tecum for the telephone number provided
in the [NCMEC] tip,” Tr. at 24:20-21 (Whitsitt), as he did “for most cases” where “it appeared that
possible or alleged sexual exploitation had occurred,” as part of his job “to obtain all possible
information related to the cyber tip,” Tr. at 25:2-18 (Whitsitt, Zimmerman).
39.
To seek the subpoena duces tecum, Whitsitt first gave his supervisor the
information he had gathered on the NCMEC Tip -- “that the mother reported that her daughter had
received a request from a man to send him a nude photograph” and that Whitsitt had conducted a
criminal check -- and then recommended that they get “a grand jury subpoena duces tecum.” Tr.
at 26:8-27:3 (Zimmerman, Whitsitt).
40.
A subpoena is the “quickest and least intrusive way to get . . . basic subscriber
records back from a third party in a case like this,” Tr. at 85:11-13 (Whitsitt), especially because
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ICAC cases normally start with limited information, like “just an IP address or a user name maybe,
or a phone number,” Tr. at 85:20-22 (Whitsitt).
41.
Whitsitt recommends a subpoena duces tecum only if he believes that a cyber tip
“needs further investigation” and if he believes “that information can be garnered from a subpoena
duces tecum.” Tr. at 32:18-20 (Whitsitt).
42.
Not every cyber tip gives rise to the need for a subpoena duces tecum, because there
has been no “possible violation of New Mexico State statute or federal law” which requires
“further investigation.” Tr. at 32:23-33:5 (Zimmerman, Whitsitt).
43.
Subpoenas are actively sought both in the “inquiry” and “full-blown case” stages
of investigation in the Attorney General’s Office. Tr. at 38:6-10 (Zimmerman, Whitsitt).
44.
After receiving authorization to proceed from his supervisor, Whitsitt then “had to
consult with an attorney assigned to the New Mexico Attorney General’s Office, Crimes Against
Children Task Force.” Tr. at 27:23-28:1 (Whitsitt).
45.
This consultation involved Whitsitt providing that attorney “a brief on what [he]
had; basically the same conversation [he] had with the supervisor; what the elements of the cyber
tip were, the legwork, so to speak, of what [Whitsitt] had done thus far, and the reason [he] was
asking for the grand jury subpoena duces tecum.” Tr. at 28:6-11 (Whitsitt).
2.
The Subpoena.
46.
On November 1, 2014, Whitsitt sent T-Mobile USA a preservation letter requesting
“pursuant to 18 U.S.C. Section 2703(f) that all known information relating to the T-Mobile
telephone number (505) 974-9704, on the date of October 21, 2013 be preserved for a period of
90 days pending issuance of a formal court order,” because that “user is suspected of criminal
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sexual communication with a child.”
Preservation Letter at 1.
See Tr. at 29:15-30:10
(Zimmerman, Whitsitt).
47.
“Criminal sexual communication with a child” is contained in N.M. Stat. Ann.
§ 30-37-3.3, providing that
[c]riminal sexual communication with a child consists of a person knowingly and
intentionally communicating directly with a specific child under sixteen years of
age by sending the child obscene images of the person’s intimate parts by means of
an electronic communication device when the perpetrator is at least four years older
than the child,
N.M. Stat. Ann. § 30-37-3.3(A), and that “‘intimate parts’ means the primary genital area, groin,
buttocks, anus or breast,” N.M. Stat. Ann. § 30-37-3.3(C)(2).
48.
The Preservation Letter does not contain an Attorney General’s Office case or
inquiry number, but provides the NCMEC Tip number. See Preservation Letter (redacting the
NCMEC Tip number from the copy provided to the Court).
49.
At the time, there would not have been a case number as the investigation was still
in the “initial inquiry” stage and would have only had an inquiry number. Tr. at 37:7-12 (Whitsitt).
50.
On November 4, 2013, the Second Judicial District Court, County of Bernalillo,
State of New Mexico, issued a Grand Jury subpoena duces tecum to T-Mobile commanding its
appearance at the Bernalillo County Courthouse on November 25, 2013. See Subpoena at 1.
51.
The Subpoena requests the following records for disclosures:
Subscriber information for the telephone number (505) 974-[remainder redacted]
that had been utilized on or about October 21, 2013. Including the name(s) and
addresses of the person(s) who opened the account, the date the account was
opened, detailed method of payment, alternate telephone number(s), email
addresses, and any identifying information which would tend to identify the
person(s) subscribing to this service.
Subpoena at 1.
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52.
In the alternative, the Subpoena provides that the requested records “may be turned
over to Special Agent Jon R. Whitsitt, a representative of the New Mexico Office of the Attorney
General, acting as an aid to the GRAND JURY.” Subpoena at 1.
53.
The Subpoena does not contain an Attorney General’s Office case number or
inquiry number. See Subpoena at 1.
54.
The Subpoena does not mention the Stored Communications Act, 18 U.S.C. § 2703.
See Subpoena at 1.
55.
The Subpoena was issued on the basis of testimony regarding the NCMEC Tip.14
See Tr. at 39:8-40:20 (Zimmerman, Whitsitt).
14
It is unclear from the record who provided this testimony at the grand jury proceeding.
Whitsitt believed he did, but was not certain:
Q.
And do you recall testifying on that day for this case?
A.
I believe so. It’s been a long time. I’m not sure if that’s the exact -- it
should have been the exact day I testified, but --
Tr. at 39:23-40:2 (Zimmerman, Whitsitt). The Grand Jury Log that Streett provided purporting to
show the proceedings for the Subpoena, however, shows Owen Pena as testifying on behalf of the
Attorney General’s Office. See Log of Grand Jury Room on 11/4/2013 at 1, filed November 3,
2018 (Doc. 174-1)(“Grand Jury Log”). The Grand Jury Log shows the grand jury proceedings for
a period of forty minutes. See Grand Jury Log at 1-3. The Grand Jury Log provides that the grand
jury is considering subpoenas for “ROBLOX Corporation // Cyber Tip 21353331; T-Mobile,”
among a number of IP addresses. Grand Jury Log at 1. There does not seem to be any information
in the Grand Jury Log connecting it to the Subpoena here, however, for the cyber tip number it
provides does not match the NCMEC Tip’s number, and there is no telephone number associated
with T-Mobile. See Grand Jury Log at 1; NCMEC Tip at 11 (providing the unredacted number as
beginning with the numbers “216”). Regarding T-Mobile, the Grand Jury Log provides “how
information known that offender in NM // investigation of T-Mobile // male requested photos //
number tracked to T-Mobile // how obtaining number will aid in investigation//” and “phone will
indicate who used phone on date of incident.” Grand Jury Log at 1. This information does not
convince the Court that Pena testified regarding the Subpoena in question despite Streett’s
statement that “Special Agent Owen Pena testified in support of the grand jury subpoenas issued
on November 4, 2013, not Whitsitt,” Streett’s Proposed Findings at 18 n.2, and the United States’
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56.
On December 27, 2013, T-Mobile responded to the Subpoena, which it states was
served on it on December 27, 2013,15 by sending Whitsitt an email containing the subscriber
information for 505-974-9704. See Email from Cathleen Rodriguez to SA Whitsitt (dated
December 27, 2013), filed August 15, 2018 (Doc. 144-3)(“T-Mobile Email”).
57.
It was “typical” that T-Mobile provide the information requested in a subpoena
duces tecum “subsequent to the date they were asked to present it or return” it. Tr. at 41:9-12
(Zimmerman, Whitsitt).
58.
Subpoenas were normally served “the same day or the day after” they are issued,
Tr. at 55:4-8 (Zimmerman, Whitsitt), and it is “unusual for a service provider to turn something
around on the exact same day that it’s received,” Tr. at 63:5-8 (Mease, Whitsitt).
59.
The T-Mobile Email states that “Bentley A. Streett” is the “Billing Account Name”
and the “Mobile Number Name,” that the account was established on “06/04/2010,” that
“Telephone 1” and “Telephone 2” are 505-877-8596, that the address is the 4620 Plume residence,
that Streett was born in 1975, and that Streett’s social security number is (redacted)-6364. TMobile Email at 1.
statement that it “understands that Officer Jon Whitsitt did not provide testimony in front of the
state grand jury on November 4, 2013,” United States’ Sealed Notice of Correction to Proposed
Findings of Fact and Conclusions of Law (September 11, 2018 Evidentiary Hearing) at 1, filed
November 6, 2018 (Doc. 175). The Court therefore does not make a finding as to who testified at
the grand jury proceedings.
15
That T-Mobile says the Subpoena was served on the same day T-Mobile provided the
records seems to be a mistake, because of Whitsitt’s testimony that he normally served subpoenas
“the same day or the day after” they are issued, Tr. at 55:4-8 (Zimmerman, Whitsitt), and that it is
“unusual for a service provider to turn something around on the exact same day that it’s received,”
Tr. at 63:5-8 (Mease, Whitsitt). When the Subpoena was served, however, is immaterial to the
Court’s analysis.
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60.
While a social security number “could be” part of the “basic identifying data” for
which the Subpoena asks, 18 U.S.C. § 2703(f) does not delineate a social security number as “basic
identifying data.” Tr. at 42:15-23 (Zimmerman, Whitsitt).
61.
The Stored Communications Act, 18 U.S.C. § 2703, allows the state or federal
government to compel “a provider of electronic communication service” to disclose subscriber
information with an administrative subpoena only if seeking the:
(A)
name;
(B)
address;
(C)
local and long distance telephone connection records, or records of session
times and durations;
(D)
length of service (including start date) and types of service utilized;
(E)
telephone or instrument number or other subscriber number or identity,
including any temporarily assigned network address; and
(F)
means and source of payment for such service (including any credit card or
bank account number),
of a subscriber to or customer of such service . . . .
18 U.S.C. § 2703(c).
62.
After receiving the T-Mobile Email, Whitsitt prepared a “supplemental report,” to
add to the initial report which contains “all the information from the case file,” for presentation to
Whitsitt’s supervisor Anthony Maez. Tr. at 48:23-49:5 (Zimmerman, Whitsitt). See
- AG Report
at 4.
63.
The AG Report is undated, but the initial report provides the investigatory actions
Whitsitt took -- a TLO search, a New Mexico Motor Vehicle Division (“MVD”) and criminal
history return, an employment history search, a preservation letter to T-Mobile, and a subpoena
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duces tecum to T-Mobile -- and the attached supplemental report states that T-Mobile responded
to the Subpoena on December 27, 2013, and identifies the subscriber of 505-974 (remainder
redacted) as “Bentley Streett of (portion redacted) Albuquerque, NM.” AG Report at 2, 4.
64.
On February 5, 2014, Whitsitt’s supervisor at the Attorney General’s Office
assigned the NCMEC Tip “to the particular law enforcement agency that would have been
responsible for further investigation,” Tr. at 53:5-12 (Zimmerman, Whitsitt) -- specifically, the
Bernalillo County Sheriff’s Office Crimes Against Children Unit, with Hartsock16 as the case
16
At the evidentiary hearing and in Streett’s Proposed Findings, Streett attacks Hartsock’s
credibility. See Tr. at 206:20-208:5 (Zimmerman, Court); Streett’s Proposed Findings at 17-18.
At the hearing, Streett’s counsel asked Hartsock if he had “been questioned by [his] own Internal
Affairs Division about the inadequacy of [his] investigation or reporting,” Tr. at 205:9-11
(Zimmerman), and Hartsock responded: “No, I can’t recall an Internal Affairs investigation about
the accuracy of my reporting,” Tr. at 205:15-16 (Hartsock). Harry Zimmerman -- Streett’s attorney
-- also asked if, in the seven years that Hartsock served as a law enforcement officer in the field,
he had “an internal affairs jacket indicating complaints against” him, Tr. at 205:21-25
(Zimmerman), and Hartsock responded “I presume,” but that he had “not looked in [his] Internal
Affairs file,” Tr. at 206:1, 3-4 (Hartsock). Mr. Zimmerman then introduced a complaint of
misconduct against Hartsock, because Hartsock “did not acknowledge that he had [complaints
against him].” Tr. at 206:5-207:2 (Zimmerman). See generally Bernalillo County Sheriff’s
Department Internal Affairs Unit Investigators Supplemental Report (signed March 3, 2005)(filed
with the Court at the September 11, 2018, evidentiary hearing as Defendant’s Exhibit K)(“IA
Report”). Mr. Zimmerman said the IA Report relates to Hartsock’s “failure to investigate and
interview witnesses” in a previous investigation, which is “essential to [the Court’s] understanding
of the inadequacies of the search warrant here.” Tr. at 207:5-8 (Zimmerman). Mr. Zimmerman
also noted that, “about seven, eight years ago,” the Court decided another motion to suppress
involving failures in Hartsock’s policing, and there, according to Streett, the Court “suppressed
and did not find good faith.” Tr. at 207:9-11 (Zimmerman)(citing United States v. Martinez, 696
F. Supp. 2d 1216 (D.N.M. 2010)(Browning, J.)).
The Court concludes that these two specific instances of alleged misconduct do not bear
on Hartsock’s credibility as a witness at the hearing. First, Hartsock does not deny the existence
of the IA Report such that introducing it shows he was lying; when asked if Internal Affairs had
questioned him about the inadequacy of his investigation or reporting he said “I can’t recall,” Tr.
at 205:15 (Hartsock), and when asked more generally about the existence of complaints about him,
he said he “presume[s]” that there are, Tr. at 206:1 (Hartsock). See Tr. at 205:9-206:1
(Zimmerman, Mease, Court, Hartsock). The Court notes that the IA Report is thirteen years old,
from early in Hartsock’s career in law enforcement, so that he could not remember the specific
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agent, see Tr. at 80:13-23 (Mease, Hartsock); id. at 140:11-14 (Zimmerman, Hartsock). See also
Bernalillo County Sheriff’s Office Initial Detective Report at 3 (dated October 3, 2014)(submitted
to the Court at the September 11, 2018, evidentiary hearing as Defendant’s Hearing Exhibit
G)(“Hartsock Report”).
65.
The Bernalillo County Sheriff’s Office Crimes Against Children Unit is affiliated
with the ICAC task force, investigating a cyber tip if the Attorney General’s Office believes that
the Bernalillo County Sheriff’s Office is best “geographically located to investigate” and “has the
right resources to do an investigation.” Tr. at 73:25-74:20 (Mease, Hartsock).
66.
Hartsock currently is a Special Agent in Charge at the Second Judicial District
Attorney’s Office. Tr. at 71:18-21 (Hartsock, Mease).
67.
Hartsock graduated from the Academy in 2004, see Tr. at 128:18-19 (Hartsock),
then worked at the Bernalillo County Sheriff’s Office for about fifteen years; where he worked in
the driving-while-intoxicated unit for about three years after patrol, see 72:6-7 (Hartsock).
68.
The training at the Academy included two to three weeks of training on search
warrants, and after graduation Hartsock received on-the-job training. See Tr. at 132:11-133:1
(Zimmerman, Hartsock).
subject of the Report is plausible. Second, the two prior instances of alleged misconduct do not
point to Hartsock’s character for truthfulness but, rather, his prior failings in properly investigating
and therefore, the Court does not consider them. While the Federal Rules of Evidence’s rules on
character evidence do not bind the Court in a suppression hearing, the Court must decide this case’s
facts, and Hartsock’s prior instances of alleged misconduct have little, if anything, to do with this
case besides showing a propensity to not fully investigate things. This propensity has little, to no,
bearing on Hartsock’s credibility, and the Court finds Hartsock a credible witness here. As he
testified before the Court, the Court looked at him carefully and listened to him clearly, and saw
and heard nothing for the Court not to believe him. The Court therefore will not adopt Streett’s
Proposed Findings on pages 17-18.
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69.
In 2009, Hartsock became a detective in the Crimes Against Children Unit, and in
2010 he started “a task force position with the [Federal Bureau of Investigation’s (‘FBI’)] Regional
Computer Forensic Laboratory,” doing digital forensics for about three and a half years before
returning to the Crimes Against Children Unit. Tr. at 72:7-12 (Hartsock). See 72:20-73:6 (Mease,
Hartsock).
70.
While at the FBI’s Regional Computer Forensic Laboratory, Hartsock became a
certified forensic examiner after completing the FBI’s training program for digital evidence, and
has experience handling large data sets and drawing inferences from the data. See Tr. at 75:1-5
(Mease, Hartsock); id. at 77:2-7 (Mease, Hartsock).
71.
When Hartsock returned to the Crimes Against Children Unit, it had “transitioned
to what’s called the Ghost Unit,” which “specialized in juvenile sex trafficking, missing persons,
and child exploitation cases.” Tr. at 72:16-19 (Hartsock).
72.
In Hartsock’s ten years working in the field, he prepared approximately 100
affidavits for search warrants, see Tr. at 133:2-10 (Zimmerman, Hartsock), and worked on “several
dozen” cases involving sexual abuse of children, Tr. at 132:5-7 (Hartsock).
73.
Hartsock is familiar with Bernalillo County Sheriff’s Department Rules and
Regulations (dated June 10, 2014)(submitted to the Court at the September 11, 2018, evidentiary
hearing as Defendant’s Exhibit F)(“BCSO Rules”), see Tr. at 134:11-19 (Zimmerman, Hartsock),
but said he had never looked up New Mexico’s rule on probable cause in warrants, see Tr. at
135:24-136:18 (Zimmerman, Hartsock), although he “knew the rule existed,” Tr. at 189:1
(Hartsock). Compare BCSO Rules at 1 (stating that “[p]robable cause must be based on what the
Deputy believes to be reasonably trustworthy information”), with N.M. Ct. R. 5-211 (stating that
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probable cause must “be based on substantial evidence,” which could be hearsay if “there is a
substantial basis for believing the source of the hearsay to be credible”).
3.
The Cellular Telephone Records Search for 505-974-9704.
74.
The referral that Hartsock received from the Attorney General’s Office contained
the NCMEC Tip, the Subpoena, and the Subpoena’s results. See Tr. at 83:13-84:13 (Mease,
Hartsock).
75.
This was the first ICAC referral Hartsock had ever received as the case agent. See
80:13-23 (Mease, Hartsock).
76.
Hartsock believed that the nature of the NCMEC Tip -- that Streett allegedly
requested a nude photograph from a fifteen-year-old girl -- warranted further investigation,
because New Mexico law prohibits the asking or possessing of sexually explicit images of a child
under the age of eighteen. See Tr. at 87:19-88:15 (Hartsock, Mease).
77.
On February 12, 2014, Hartsock obtained a search warrant for the T-Mobile
telephone records for 505-974-9704 on the basis of an undated affidavit that he submitted, which
was incorporated into the warrant. See First Affidavit at 3; First Warrant at 4; Tr. at 72:1-2
(Hartsock); id. at 72:8-9 (Hartsock).
78.
The Honorable Ross C, Sanchez, former New Mexico District Court Judge for the
Second Judicial District Court, approved the First Warrant. See First Warrant at 1.
79.
The First Warrant, like all warrants, must be supported by probable cause to be
valid under the Fourth Amendment. See Tr. at 145:23-25 (Zimmerman, Hartsock).
80.
The First Affidavit requests the: (i) “Account Subscriber Information identifying
the name(s), address and other phone number associated with [the 505-974-9704] account”;
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(ii) “all phone calls made and received, listing the phone numbers called or calling from and the
dates, times and durations from 7/31/2013-2/5/2014”; and (iii) “all text and mixed messages made
and received, listing the phone number(s) texted or texted from and the dates and times from
7/31/2013-2/5/2014.” First Affidavit at 1.
81.
Hartsock chose the “7/31/2013-2/5/2014” period, First Affidavit at 1, because he
“decided to do 90 days prior to when the incident was reported to NCMEC” through the current
date, but did not say why he decided on the “90 days prior,” Tr. at 148:22-23 (Hartsock). See Tr.
at 148:21-25 (Zimmerman, Hartsock).
82.
With the First Warrant, Hartsock sought to determine if Streett was texting M.Y.
and if any “picture messages were being sent.” Tr. at 91:8-12 (Hartsock).
83.
The First Affidavit describes how NCMEC “received an online tip about an adult
male soliciting a nude photograph of a fifteen year old girl over text message conversation” on
October 31, 2013. First Affidavit at 2. See NCMEC Tip at 1.
84.
The First Affidavit describes the tipster as a “confidential informant,” First
Affidavit at 2, because Hartsock wanted “to keep the identity of the mother private,” Tr. at 94:1718 (Hartsock).
85.
The NCMEC Tip does not say “keep my name out of [the investigation]”; rather,
Hartsock interpreted the NCMEC Tip in that manner. Tr. at 12-17 (Mease, Hartsock).
86.
This was the first time Hartsock had relied on information coming from a person
who he believed “didn’t want to be named in a search warrant,” Tr. at 94:11-13 (Hartsock), and
relied on advice from “someone in narcotics” to refer to the tipster as a CI, Tr. at 94:14-17
(Hartsock).
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87.
Hartsock recalls only one other time he kept an informant’s name confidential in a
warrant. See Tr. at 133:20-134:3 (Hartsock).
88.
Hartsock should not have used the term “confidential informant” and should “have
identified that her identity is known to me, or identified her as a relative to the child who could be
at risk . . . . Or . . . just put her name, because she’s going to have to be disclosed in my case
eventually, no matter what.”
Tr. at 95:21-24.
See id. at 143:9-19 (Zimmerman,
Hartsock)(discussing how Hartsock misused the term “confidential informant,” clarifying that the
tipster wished to remain anonymous but was not anonymous).
89.
Hartsock found the tipster “trustworthy” as the victim’s mother, but did not put this
fact in the First Affidavit. Tr. at 144:5-19 (Hartsock, Zimmerman)(acknowledging that “the judge
wouldn’t have seen [the CI] as the mother” from the four corners of the First Affidavit). See First
Affidavit at 2 (not revealing the CI as M.Y.’s mother).
90.
The First Affidavit states that the tipster “physically observed the cell phone of the
fifteen year old female,” and that the tipster said that “the conversation was between MY and a
male named Bentley Streett who lived in Albuquerque, NM.” First Affidavit at 2.
91.
The First Affidavit states that the tipster did not provide how she knew Streett was
the male who requested the photograph nor how she knew that he resides in Albuquerque. See
First Affidavit at 2.
92.
The First Affidavit states that the tipster said that she “did not see a photograph or
other media transmitted from MY to the requester, but was concerned that it could happen in the
future.” First Affidavit at 2. See NCMEC Tip at 4
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93.
The First Affidavit does not discuss whether the tipster had provided accurate
information to law enforcement in the past. See First Affidavit at 2.
94.
Hartsock tried to contact the tipster “to gather more information[,] but ha[d] failed
to do so at the time of writing” of his affidavit, First Affidavit at 2, but did not try harder to contact
her, believing he had “a small likelihood of actually getting her to participate in the investigation”
because “she didn’t want her daughter to know,” Tr. at 239:13-16 (Hartsock). See Tr. at 140:23141:11 (Hartsock, Zimmerman)(discussing how Hartsock tried to reach M.Y.’s mother, but failed,
and did not contact local police for help); id. at 157:20-158:2 (Zimmerman, Hartsock)(elaborating
that Hartsock only called the tipster once, and she did not answer). See also Hartsock Report at 3.
95.
The First Affidavit states that “[t]he New Mexico Attorney Generals [sic] Internet
Crimes Against Children task force received the tip and issued a subpoena to T-Mobile USA for
the account information related to 505-974-9704, and discovered it was registered to Bentley
Streett, who lives in Bernalillo County.” First Affidavit at 2.
96.
Hartsock believed that the Subpoena corroborated the NCMEC Tip, because T-
Mobile’s return verified that Streett owned the number and lived in Albuquerque. See Tr. at 87:216 (Hartsock, Mease); id. at 152:21-153:9 (Hartsock, Zimmerman).17
17
Streett’s Proposed Findings aver that “[n]othing in the New Mexico Attorney General’s
T-Mobile Subpoena or return indicated the reliability of the CI or the information.” Streett’s
Proposed Findings ¶ 31, at 10 (citing Tr. at 151). To the extent that Streett is saying that the
Subpoena return does not corroborate the CI’s information, this is a legal conclusion and not a fact
and the Court does not adopt this Proposed Finding. To the extent that Streett is simply stating
that neither the Subpoena nor the return discuss the CI’s reliability -- meaning whether she has
previously provided accurate information, see United States v. Quezada-Enriquez, 567 F.3d at
1233 -- this is a fact, albeit irrelevant.
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97.
Hartsock requested the call, text, and mixed media message history for 505-974-
9704 to confirm the online tip “and find out if any mixed media messages that contain nudity of
MY or the requester” had been sent. First Affidavit at 2.
98.
A person requesting nude photographs “has to make many requests before they
attain a nude photograph.” First Affidavit at 2.
99.
Hartsock averred that he needs the telephone records, because, based on the
NCMEC Tip, “the frequency or infrequency of mixed media messages” between M.Y. and Streett
could evidence such requests, and “contain child pornography or the attempt to entice sex from a
minor.” First Affidavit at 3.
100.
Hartsock had no information that sexually explicit images had been sought or that
sexually explicit images existed. See Tr. at 172:21-173:16 (Zimmerman, Hartsock).
101.
Hartsock thought he had probable cause to believe that a crime had been committed,
because “[e]ven if the underage person doesn’t send an image, simply soliciting . . . a nude or a
sexually explicit image” is a crime, Tr. at 169:9-13 (Hartsock, Zimmerman), and in his “training
and experience . . . usually when 40-year-old men text 15 year olds for nude pictures, they’re not
for medical reasons. They’re going to be sexually explicit,” Tr. at 169:23-170:1 (Hartsock).
102.
Hartsock had run searches to determine if Streett had any outstanding warrants for
his arrest or significant criminal history and did not find anything, but did not include this
information in the First Affidavit. See 163:1-19 (Zimmerman, Hartsock); First Affidavit at 1-3.
103.
As a matter of course, however, Hartsock does not include the criminal history of
the suspect in his search warrants, because he is not sure if he can due to bias and prejudice. See
Tr. at 166:17-22 (Hartsock).
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104.
Hartsock executed the First Warrant on February 12, 2014, and T-Mobile thereafter
emailed the requested records to him on February 18, 2014. See Search Warrant Return of
Inventory at 5 (dated March 11, 201418), filed July 24, 2018 (Doc. 141-2)(“First Warrant Return”);
Hartsock Report at 3.
105.
The telephone records show about “136 communications back and forth between
Bentley Streett’s listed phone number on the cyber tip and the alleged victim’s phone number,
including right around the October 30th, 31st date of the cyber tip,” and a mixed media message
sent from Streett to the alleged victim. Tr. at 97:12-18 (Hartsock).19 See Hartsock Report at 3.
106.
Hartsock described the returned telephone records as being of a “very large size”
and that he counted communications with “135 different area codes,” Tr. at 107:3-13 (Hartsock),
with a total of approximately 56,000 calls and text messages, see Tr. at 97:7-9 (Hartsock); id at
259:6-9 (Hartsock)(describing a large majority of the records as text messages).
107.
Hartsock generated a map with multiple colored dots which “represent the
approximate location of the different area codes that were found” in the telephone records, Tr.
18
The First Warrant Return says that return was made on March 11, 2012. See First
Warrant Return at 5. The First Warrant Return appears to be a boiler plate document with blanks
for the affiant to add various pieces of information. See First Warrant Return at 5. The blanks for
all the dates, however, end with “2012.” First Warrant Return at 5. All of the 2012s are crossed
out except for on the “Return made this” line -- by Hartsock, as the initials “KH” appear next to
the crossed out 2012s -- so the Court concludes that the return was not made two years before the
warrant was executed. First Warrant Return at 5.
19
Hartsock testified that “a picture message was sent from the alleged minor’s phone to
Bentley Streett’s phone,” Tr. at 97:16-18 (Hartsock), but this was a mistake. The Hartsock Report
states that the records show “a mixed media message (MMS) on October 30, 2013, from Bentley
to the victim.” Hartsock Report at 3. Further, the local law enforcement’s interview of M.Y. state
that only one photograph was exchanged -- a photograph from Streett of his face. See Kittson
County Sheriff’s Department Report at 1 (dated February 23, 2014)(submitted to the Court at the
September 11, 2018, evidentiary hearing as Defendant’s Hearing Exhibit L).
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110:4-12 (Mease, Hartsock), spread across the United States and parts of Canada, and showing
“that this person’s phone is in communication with virtually every geographical region of the
country,” Tr. at 110:16-18. See Map (undated)(submitted to the Court at the September 11, 2018,
evidentiary hearing as Government’s Hearing Exhibit 1).
108.
The Map’s dots indicate Streett was communicating with two people in Minnesota,
where the NCMEC Tip submitter and her daughter, M.Y., reside. See Map at 1; Hartsock Report
at 3-4; Kittson County Sheriff’s Department Report at 1 (dated February 23, 2014)(submitted to
the Court at the September 11, 2018, evidentiary hearing as Defendant’s Hearing Exhibit L)(“Vig
Report”).
109.
The number of area codes with which Streett was texting fits the mold of someone
who meets people on the internet, which “has no geographical boundaries.” Tr. at 111:3-16
(Hartsock). See Vig Report at 1 (stating that M.Y. told officers that she met Streett on Twitter);
Second Affidavit at 4 (same).
110.
Hartsock also used Streett’s telephone records to generate a pivot table20 on Excel
to “show[] in order . . . what numbers were on his phone records the most to least.” Tr. at 111:1316 (Hartsock). See Excel Table (undated)(submitted to the Court at the September 11, 2018,
evidentiary hearing as Government’s Exhibit 2).
20
A pivot table summarizes a large amount of data so that a user may rearrange the data in
a more meaningful way. Pivot Table, Wikipedia, https://en.wikipedia.org/wiki/Pivot_table (last
visited Nov. 26, 2018).
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111.
Hartsock thought that “every MMS message in the records is potentially of interest
because it’s showing pictures being communicated.”21 Tr. at 122:3-5 (Hartsock).
112.
The highest frequency number in the telephone records is for the number 40404,
which “is a short message text code used by Twitter to indicate to a person’s cellphone that they
either have a notification or someone is responding to a post or direct massage on Twitter.” Tr. at
113:17-21 (Mease, Hartsock). See Excel Table at 1.
113.
The second highest frequency number in the telephone records is for a telephone
number with a 740 area code and a total of 4,218 text messages exchanged in the approximately
six-month scope of the First Warrant, see Excel Table at 1; First Affidavit at 1; indicating that this
individual “is probably one of the most important people in [Streett’s] life,” Tr. at 114:13-16
(Mease, Hartsock).
114.
Hartsock called this telephone number and spoke with a girl identified as M.S., who
indicated that she is under eighteen, does not live in New Mexico, knew she was speaking to
Streett, that she met Streett on Twitter, and that they had “sexual conversations.” Tr. at 116:10-13
(Hartsock). See Tr. at 114:17-24 (Mease, Hartsock).
115.
M.S. indicated she knew a minor male who also communicated with Streett --
identified in the Second Superseding Indictment as “John Doe” -- and law enforcement later
interviewed this male based on M.S.’ information. See Tr. at 116:14-3 (Mease, Hartsock).
21
MMS stands for “multimedia messaging service,” which includes pictures, forty seconds
or less of video, audio, and text messages greater than 160 alpha-numeric characters in length.
Multimedia Messaging Service, Wikipedia, https://en.wikipedia.org/wiki/Multimedia_
Messaging_Service (last visited Oct. 26, 2018).
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116.
The third highest frequency number in the telephone records is for a telephone
number with a 915 area code with a total of 3,211 text messages and fifty MMS messages
exchanged in the approximately six-month scope of the First Warrant. See Excel Table at 1, 5, 6;
First Affidavit at 1. See also Tr. at 120:21-121:8 (Mease, Hartsock)(describing how T-Mobile
codes MMS messages differently and how to tell if the record is of MMS messages).
117.
The 915 telephone number belongs to the girl identified as Jane Doe 3 in the Second
Superseding Indictment, who was later interviewed and who provided her electronics to law
enforcement for investigation, which revealed “photographs that are the subject of the indictment.”
Tr. at 118:17-20 (Mease, Hartsock). See Tr. at 117:7-11 (Mease, Hartsock); id. at 118:6-16
(Mease, Hartsock).
118.
The telephone records reveal the telephone numbers and number of messages
exchanged in the approximately six-month scope of the First Warrant with Jane Doe 1 (telephone
number beginning with 815), Jane Doe 2 (telephone number beginning with 416), Jane Doe 4
(telephone number beginning with 605), and John Doe (telephone number beginning with 707).
See Tr. at 119:20-120:2 (Mease, Harstock)(discussing Jane Doe 1 in the records); id. at 120:18-20
(Mease, Hartsock)(John Doe); id. at 122:10-12 (Mease, Hartsock)( Jane Doe 2); id. at 122:18-23
(Mease, Hartsock) (Jane Doe 4); Excel Table at 2, 6, 10; First Affidavit at 1. See also Tr. at 178:1519 (Zimmerman, Hartsock)(verifying that the telephone records “contained all of the alleged
victims named in the indictment”).
119.
Law enforcement interviewed Jane Doe 1, who also turned over her electronics,
which revealed “photographs relating to the underlying indictment.” Tr. at 120:6-14 (Mease,
Hartsock).
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120.
The telephone records reveal 591 text messages and six MMS messages exchanged
with Jane Doe 1. Excel Table at 2, 10.
121.
None of the alleged victims named in the indictment independently contacted police
to make a complaint. See Tr. at 125:14-25 (Mease, Hartsock, Court, Zimmerman).
122.
Hartsock could not charge a crime based on the telephone records. See Tr. at
181:16-17 (Hartsock).
4.
The February 24, 2014, Search of the 4620 Plume Residence.
123.
On February 24, 2014, Hartsock swore an affidavit supporting an application for a
search warrant to search the 4620 Plume residence and obtained the search warrant the same day.
See Second Affidavit at 13; Second Warrant at 14.
124.
The Honorable Christina T. Jaramillo, then-New Mexico Magistrate Judge for the
Bernalillo County Metropolitan Court, approved the Second Warrant telephonically. See Second
Warrant at 14.
125.
The Second Warrant incorporates the Second Affidavit, stating it is “hereby made
part of this warrant.” Second Warrant at 14.
126.
The Second Affidavit begins by providing a description of the appearance of the
4620 Plume residence, including that the only car not “backed in” the driveway was a brown Fiat
with the New Mexico license plate “PL8SPCL.” Second Affidavit at 1.
127.
The Second Affidavit does not provide to whom the brown Fiat is registered. See
Second Affidavit at 1-13.
128.
Hartsock did not run the MVD records for the brown Fiat, nor did he look up
assessor information for the 4620 Plume residence.
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Case 1:14-cr-03609-JB Document 177 Filed 11/27/18 Page 35 of 181
Hartsock)(discussing Hartsock’s lack of recollection and not having this information anywhere);
Hartsock Report at 3-4 (not providing this information); Second Affidavit at 1-13 (same).
129.
The MVD records reveal a brown Fiat with New Mexico license plate PL8SPCL
has been titled to and registered by Pamela Lesiak since August 8, 2013, at the 4620 Plume
residence. See PL8SPCL - NM -Vehicles at 1 (dated September 13, 2018)(filed with the Court at
the September 11, 2018, evidentiary hearing as Government’s Exhibit 5).22 See also State of New
Mexico Motor Vehicle Division Certificate of Vehicle Registration (undated)(filed with the Court
at the September 11, 2018, evidentiary hearing as Defendant’s Exhibit N)(showing a Fiat with
license plate PL8SPCL registered to Lesiak from 2013-2014).
130.
The assessor records also show that Lesiak paid the 2013 tax bill for the 4620 Plume
residence and that Streett granted her the property in 2005. See 2013 Tax Bill at 2 (undated)(filed
with the Court at the September 11, 2018, evidentiary hearing as Defendant’s Exhibit J); Warranty
Deed at 3 (dated October 7, 2005)(filed with the Court at the September 11, 2018, evidentiary
hearing as Defendant’s Exhibit J).
131.
In hindsight, knowing that the Fiat and home are tied to Lesiak in the MVD and
assessor records, Hartsock “wouldn’t have changed [his] mind to go forward with the warrant.”
Tr. at 201:10-11 (Hartsock); id. at 244:10-13 (Hartsock)(elaborating that this is because he “had
no more recent information than what I felt those records to be, and to me, more reliable
information,” noting the telephone subscriber information).
22
These records also reveal that the same license plate used to be on a Ford Crown Victoria
which, from August 6, 2012, until October 17, 2013, was titled to and registered by Lesiak and
Streett, at the 4620 Plume residence. See PL8SPCL - NM- Vehicles at 3.
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132.
This description of the 4620 Plume residence came from a “limited surveillance”
that Hartsock conducted “during daytime hours, so [he] could get a description for [his] warrant
and try to see if [he] could learn anything more about the house.” Tr. at 101:6-9 (Hartsock).
133.
The Second Affidavit provides that the 4620 Plume residence contains many pieces
of personal property that constitute a criminal offense and/or are material evidence of a criminal
offense, including, but not limited to: (i) any electronic device “capable of sending text, photos
and video using online based communication services,” and any device enabling a computer to do
so; (ii) any storage device “that can store images or other files that could contain child
pornography”; (iii) “[a]ll documents which indicate proof of residence at 460 [sic] Plume Rd NW”;
(iv) “[a]ll photographs . . . which depict a minor posed or candid in a sexual manner”;
(v) “contracts, agreement records and accounts with Internet providers, computer bulletin boards
or other computer on line service provider, and accounts with other persons, companies or
corporations evidencing manufacturing, production, distribution, receiving, possessing, or sales”
of any materials or documents “relating to sexual conduct of persons under the age of 18”;
(vi) “personal property tending to establish the identity of person or persons having the dominion
and control over the computer equipment”; (vii) lock boxes or safes, or evidence of such off-site
containers, where “evidence of crimes against children may be stored for safekeeping against
seizure”; and (viii) “[a]ll phones and all cell phone records to establish ownership.” Second
Affidavit at 1-3.
134.
The Second Affidavit again describes the NCMEC Tip and subsequent Subpoena
issued to T-Mobile in same manner as in the First Affidavit. See
- Second Affidavit at 4.
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135.
The Second Affidavit does not identify the CI as the alleged victim’s mother nor
provide whether she has provided accurate information in the past. See Second Affidavit at 3-4.
136.
Again, the Second Affidavit does not include Streett’s lack of outstanding warrants
or criminal history. See Second Affidavit at 4-13.
137.
The Second Affidavit provides some additional background information on the
partnership between NCMEC and the New Mexico Attorney General’s Office, stating that
NCMEC screens the online tip first -- because anybody can submit one through its website -- then
assign it to the appropriate state’s “ICAC coordinator,” who “conducts a basic investigation to find
out what county or city has jurisdiction over the case.” Second Affidavit at 4.
138.
The Second Affidavit then discusses what Hartsock learned from Minnesota law
enforcement’s interviews with M.Y. and with her mother. See Second Affidavit at 4.
139.
On February 21, 2014, Hartsock reached out through the ICAC network to law
enforcement in Minnesota, where M.Y. resided, to attempt to make “in-person contact with mom
and daughter, to get more information about what had occurred” -- especially because Hartsock
believed the mixed media message “could have been child pornography.”
Tr. at 98:1-16
(Hartsock). See Hartsock Report at 3.
140.
At the time that Hartsock reached out to local law enforcement, he lacked “specific
knowledge of” how to contact law enforcement in another state, Tr. at 182:9-10 (Hartsock),
because he wanted “to make sure someone with ICAC background” would contact M.Y. and her
mother, Tr. at 180:4-6 (Hartsock).
141.
Hartsock waited to contact local law enforcement until after he executed the First
Warrant, because he wanted to establish if M.Y. was still talking to Streett, as it would “affect [his]
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ability to interview someone over the phone or law enforcement’s ability to interview [M.Y.] in
person if [she is] still in contact with [Streett].” Tr. at 151:23-182:2 (Hartsock).
142.
On February 23, 2014, Matthew Vig, with the Kittson County Sheriff’s Office,
made contact with M.Y. and her mother at the Kittson County Sheriff’s Office in Minnesota. See
Hartsock Report at 4; Vig Report at 1.
143.
Vig took a statement from M.Y., who said she was fourteen-years-old at the time23
and that Streett knew of her age, because her Twitter page showed her age of fourteen and because
she told Streett that she was fourteen. See Vig Report at 1.
144.
Vig reported that M.Y. said that Streett asked her “to send him nude photos to him,
two or three times,” but that she did not send him any photographs. Vig Report at 1.
145.
The Vig Report states that M.Y. said Streett sent her a “face photo, no nudity,” and
that he “was older,” but that she “did not know his true age.” Vig Report at 1.
146.
The Second Affidavit states that M.Y. “consensually gave her cellphone to Deputy
Vig so he could download it and confirm the details of her relationship with Bentley.” Second
Affidavit at 5. See Vig Report at 1 (stating that, “with consent, I received M (remainder redacted)’s
cell phone as evidence”).24
23
This does not meld with the NCMEC Tip’s allegation that Streett “requested a nude
photography by text message from [the submitter’s] 15 year old daughter.” NCMEC Tip at 3. The
Court does not have sufficient information in the record to determine M.Y.’s age at the time of
Streett’s request, but notes that whether she was fourteen or fifteen at the time, she was a minor.
24
Streett’s Proposed Findings state “MY provided her cell phone to Minnesota law
enforcement. No unlawful images were found.” Streett’s Proposed Findings ¶ 8, at 14 (citing Tr.
at 189). This is a misstatement of the evidence. At the hearing, Mr. Zimmerman questioned
Hartsock:
Q.
There were no images that were unlawful on MY’s phone, were there?
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147.
Hartsock believed that the Vig Report “more strongly corroborated” the NCMEC
Tip and that this corroboration, combined with “the phone records showing the high amount of
communication, and that mixed media message being sent,” led Hartsock to draft a search warrant
for Streett’s home. Tr. at 100:13-18 (Hartsock).
148.
The Second Affidavit concedes there is no evidence that M.Y. sent Streett any nude
photographs, but notes that Streett’s asking constitutes a crime under N.M. Stat. Ann. § 30-37-3.2.
See Second Affidavit at 5.
149.
New Mexico Stat. Ann. § 30-37-3.2 provides that the crime of
[c]hild solicitation by electronic communication device consists of a person
knowingly and intelligently soliciting a child under sixteen years of age, by means
of an electronic communication device, to engage in sexual intercourse, sexual
contact or in a sexual or obscene performance, or to engage in any other sexual
conduct when the perpetrator is at least four years older than the child,
and that “electronic communication device” includes a computer and cellphone. N.M. Stat. Ann.
§ 30-37-3.2(A) & (F).
150.
New Mexico Statute § 30-37-1 does not define “sexual or obscene performance,”
but defines “sexual conduct” as an “act of masturbation, homosexuality, sodomy, sexual
A.
I don’t recall that they found any on that review.
Tr. at 189:19-22 (Zimmerman, Hartsock). This indicates that Hartsock did not remember if images
were found on M.Y.’s telephone. Further, the Vig Report does not say what was found in the
search of the cellular telephone, or if it even was searched. See Vig Report at 1-2 (just saying the
telephone was taken as “evidence”). The Hartsock Report also does not indicate if the telephone
was searched. See Hartsock Report at 4. The Court thus cannot conclude that “[n]o unlawful
images were found” on M.Y.’s cellular telephone,” and does not incorporate this Proposed
Finding. Streett’s Proposed Findings ¶ 8, at 14 (citing Tr. at 189). The Court also does not
incorporate Streett’s Proposed Finding that “Hartsock omitted from his search warrant
affidavit . . . the results of the search of MY’s telephone showing no sexually explicit images,” for
the same reason. Streett’s Proposed Finding ¶ 10, at 15 (citing Vig Report; Tr. at 189-91).
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intercourse or physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks
or, if such person be female, breast.” N.M. Stat. Ann. § 30-37-1(C).
151.
Hartsock states that, in his “training and experience[,] a person does not try to gain
child pornography only once and one way,” and thus he “seeks to ensure no photographs were
received from our victim that would violate further law of child exploitation and to ensure there
were no other victims that our suspect has contacted asking for explicit images of minors.” Second
Affidavit at 5.
152.
The remainder of the Second Affidavit provides how Hartsock’s “training and
experience” leads him to believe that evidence of child pornography may be found in the various
pieces of personal property which he wants to search and seize. Second Affidavit at 5-13.
153.
The Second Affidavit does not discuss the information gleaned from the telephone
records that Hartsock obtained under the First Warrant. See Second Affidavit at 2-13.25
154.
The Second Affidavit does not provide how Hartsock decided to search the 4620
Plume residence or why he believes Streett’s personal property or evidence of Streett’s alleged
criminal activity will be found at the residence, see Second Affidavit at 1-13; Motion at 3, but
Hartsock would have been able to add that information to the Second Warrant if the judge to whom
he presented the Second Affidavit had asked where in Bernalillo County Streett lived, see Tr. at
25
Streett’s Proposed Findings state: “Hartsock could have used the information gleaned
from the telephone warrant as a basis for the house warrant, even without the information
Minnesota police provided after their interview of MY.” Streett’s Proposed Findings ¶ 61, at 13
(citing Tr. at 109-10). To the extent that this is stating that the telephone records alone could have
established probable cause, this is a legal conclusion and the Court does not adopt this Proposed
Finding. It is true, however, that the telephone records information could have been included in
the Second Warrant to help establish probable cause.
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103:4-9 (Mease, Hartsock). See also Tr. at 192:15-17 (Hartsock)(admitting it was a mistake to
connect the address to Streett); id. at 204:15-17 (Hartsock)(same).
155.
The 4620 Plume address “came from the cyber tip; it came from the grand jury
subpoena returns, and T-Mobile also provided it to [Hartsock] when they returned [Hartsock’s]
search warrant records,” Tr. at 100:24-101:2 (Hartsock); the Hartsock Report provides that
Streett’s “New Mexico driver's license also showed this as his address,” Hartsock Report at 4. See
Tr. at 161:7-14 (Hartsock)(stating that Hartsock had no indication that Streett “was living
anywhere else,” because his driver’s license and the subscriber billing information returned to
4620 Plume and that, “reasonably, to the best of my ability, without knocking on his door
beforehand without a warrant, I was able to verify he lived there”); id. at 199:5-14
(Hartsock)(describing why he chose to search 4620 Plume).
156.
Hartsock executed the Second Warrant on February 25, 2014, leaving a copy of the
Warrant with Lesiak, Streett’s live-in girlfriend, and taking the following property: one Mac
laptop, one Mac desktop, one “smart phone,” and one “regular cell phone.” Search Warrant Return
and Inventory at 15 (dated March 4, 2014), filed August 15, 2018 (Doc. 144-5). See Tr. at 103:1014 (Mease, Hartsock); Hartsock Report at 4.
157.
Streett was also present at the 4620 Plume residence upon execution of the Second
Warrant. See Tr. at 103:13-14 (Mease, Hartsock); Hartsock Report at 4.
158.
Hartsock escorted Street, unhandcuffed, to his unmarked vehicle and, after
Hartsock read Streett his Miranda26 warnings, Streett agreed to speak. See Hartsock Report at 4.
26
Miranda v. Arizona, 384 U.S. 436 (1966)(“Miranda”). Miranda “requires that procedural
safeguards be administered to a criminal suspect prior to ‘custodial interrogation.’” United States
v. Perdue, 8 F.3d 1455, 1463 (10th Cir. 1993)(quoting Miranda, 384 U.S. at 444). The Supreme
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159.
Streett stated that only he and his girlfriend, Lesiak, lived in the 4620 Plume
residence and that they were in a “‘somewhat’ open relationship.” Hartsock Report at 4.
160.
Streett confirmed that he uses his personal Twitter account -- @thebiguy69 -- “to
meet and interact with woman [sic] and girls,” and, while “he asks his followers to be at least 18
years of age,” he “texts some of the girls he meets on [Twitter with] his cell phone,” and “did recall
a couple of users that he knew were under 19 years of age, one of them being the name
‘M(remainder redacted).’” Hartsock Report at 5.
161.
Streett also told Hartsock that “he may have asked some of the under 18 girls for
nude photographs of themselves,” but that he did not believe he had child pornography on his
cellphone -- the Nokia Lumia smartphone retrieved from the residence. Hartsock Report at 5.
162.
Streett discussed how he had previously traveled out of New Mexico to meet
women whom he met online on two occasions: (i) around January 5, 2014, when he traveled to
Phoenix, Arizona, to meet nineteen-year-old J., saying they had no sexual relationship; and (ii) on
Court provided the substance of the warning that must be given to a defendant to meet these
procedural safeguard requirements:
Prior to any questioning, the person must be warned that he has a right to remain
silent, that any statement he does make may be used as evidence against him, and
that he has a right to the presence of an attorney, either retained or appointed. The
defendant may waive effectuation of these rights, provided the waiver is made
voluntarily, knowingly and intelligently. If, however, he indicates in any manner
and at any stage of the process that he wishes to consult with an attorney before
speaking there can be no questioning. Likewise, if the individual is alone and
indicates in any manner that he does not wish to be interrogated, the police may not
question him.
Miranda, 384 U.S. at 444-45.
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January 19, 2014, when he drove to Decatur, Illinois, to meet twenty-year-old F.S., with whom he
engaged in “foreplay.” Hartsock Report at 5.
5.
The Subsequent Search Warrants Resulting from Evidence Seized from the
4620 Plume Residence.
163.
On May 21, 2014, Hartsock swore to an affidavit supporting an application for a
warrant to search Streett’s primary cellular telephone taken during the search of the 4620 Plume
residence: “A Nokia Lumia cell phone running a Microsoft Operating System.” Affidavit for
Search Warrant at 1 (executed May 21, 2014), filed December 1, 2017 (Doc. 78-2)(“Third
Warrant”).
164.
The Third Warrant requests that the Second Judicial District Court allow Hartsock
to send “[t]he text and mixed media messages stored on” Streett’s Nokia cellular telephone “to the
built in back-up service provided by Microsoft, which will transmit the phone[’]s text and mixed
media messages over the internet to Microsoft[’]s servers. Once there, Microsoft can provide a
disk or download of the messages in electronic format.” Third Warrant at 1.
165.
The Third Warrant also “requests that Microsoft preserve these message[s] and not
allow the user to initiate any request that could delete or alter the messages once uploaded.” Third
Warrant at 4.
166.
The Third Warrant provides the same description of the NCMEC Tip and Vig’s
follow-up with M.Y. that the Second Affidavit provides. See Third Warrant at 1-3.
167.
Hartsock again states that his “training and experience” counsels that “a person
does not try to gain child pornography only once and one way,” so he wants to ensure Streett
received no photographs from M.Y. or any other underage victims. Third Warrant at 3.
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168.
The Third Warrant describes Hartsock’s execution of the Second Warrant and his
conversation with Streett, in which Streett “admitted to meeting many women and girls on Twitter
and other social media websites and ask[ing] them for nude photographs of themselves.” Third
Warrant at 3.
169.
According to the Third Warrant, Streett said in this conversation that “he
remembered meeting MY and talking to her via text messages on his phone but couldn’t remember
if he asked her to send a naked photograph. He did know she was under 18 years old during their
conversations.” Third Warrant at 3. See Hartsock Report at 5 (stating that when asked about
M.Y., Streett said he knows her).
170.
According to the Third Warrant, the Nokia telephone “contains thousands of
messages between Bentley and other women, some who identify themselves as young as 14 years
old and contain photographs of genitals being sent and received from Bentley.” Third Warrant at
4.
171.
Microsoft told Hartsock that it could not prevent a remote user from erasing data
from the phone, so he physically went through the conversations contained on the telephone. See
Hartsock Report at 6.
172.
Hartsock extracted “[a]pproximately 13,000 different text messages” from the
Nokia telephone, Tr. at 104:19-20 (Hartsock), and found that it appeared that Streett was texting
minors, because Streett “would store the contacts as the name of the person, their location, their
age and sometimes their usernames,” Hartsock Report at 6. See Tr. at 104:19-105:3 (Hartsock,
Mease).
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173.
Hartsock found the conversation with M.Y., which showed that Streett “indirectly
ask[ed] her for a nude photograph around the time the complaint was made.” Hartsock Report at
8.
174.
In a conversion with a person identified as “B,” Streett discussed a sexual
relationship he had “with a young follower” and sent B “a selfie of him and a white female who
appears to be a teenager. It appears they are in a hotel or motel room . . . .” Hartsock Report at
10-11.
175.
After writing another warrant for “a longer expansion of records for Bentley from
T-Mobile” to determine with whom Streett had the sexual relationship, he found “a large amount
of texting between two phone numbers,” one beginning with “414”27 and the other with “815.”
Hartsock Report at 11-12.
176.
On June 24, 2014, Hartsock swore to an affidavit to obtain a search warrant for the
“call, SMS, MMS and any other recorded transaction records or meta data from 4/1/20132/28/2014,”28 and the “cell tower locations for each call or SMS, MMS or other recorded
transaction or meta data from 4/1/2013-2/28/2014” for Verizon Wireless Account 414-(remainder
27
The Hartsock Report consistently provides the three digits as “404,” but this is clearly a
mistake, as he says, “I wrote warrants to Verizon Wireless, the carrier of both numbers,” Hartsock
Report at 12, and the resulting warrants are for telephone numbers beginning with “414” and
“815.” See Affidavit for Search Warrant at 1 (executed June 24, 2014), filed December 1, 2017
(Doc. 78-3); Affidavit for Search Warrant at 1(executed August 26, 2014), filed December 1, 2017
(Doc. 78-4).
28
The affidavit does not describe what is meant by “SMS” or “MMS.” “SMS” stands for
“short message service,” which is what is commonly known as a “text message”; although SMS
messaging only “allow[s] users to send and receive messages of up to 160 alpha-numeric
characters.” SMS, Wikipedia, https://en.wikipedia.org/wiki/SMS (last visited Oct. 26, 2018).
“MMS” is discussed supra note 21.
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redacted). Affidavit for Search Warrant at 1 (executed June 24, 2014), filed December 1, 2017
(Doc. 78-3)(“Fourth Warrant”).
177.
The Fourth Warrant provides the same information regarding the NCMEC Tip and
Vig’s contact with M.Y. as previous affidavits provide. See
- Fourth Warrant at 1-3.
178.
According to the Fourth Warrant, Hartsock “interviewed Bentley Streett who
admitted to meeting wom[e]n on Twitter and asking them for nude photographs, 1-2 of them he
knew were under 18 when he asked for the nude photographs. He stated that Twitter and text
messaging were his primary ways of communicating with the underage girls.” Fourth Warrant at
3.
179.
The Fourth Warrant states that, after reviewing text messages on Streett’s cellular
telephone, Hartsock found “multiple conversations” in which Streett “sends a photo of himself
with a young teenage looking female and tells a story that he went to Illinois and Indiana in July
of 2013 and met a virgin 15 year old girl that he had sexual contact with for a few days.” Fourth
Warrant at 3.
180.
According to the Fourth Warrant, Hartsock obtained Streett’s telephone records,
and identified the 414-(remainder redacted) number as one which Streett was “sending and
receiving hundreds of text messages from in a short time span during early July, 2013.” Fourth
Warrant at 3.
181.
Hartsock says that he wants to determine if this user is a “possible victim[] of sexual
exploitation or sexual coercion to perform intimate acts. By Bentley’s statements he had physical
sexual intercourse with her at his motel room, and with the phone location information affiant
seeks to identify that hotel room.” Fourth Warrant at 3.
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182.
On August 26, 2014, Hartsock swore to an affidavit for a search warrant to obtain
“[a]ccount subscriber and a list of all other phone numbers associated with [Verizon Wireless]
account [815-(remainder redacted),] including their names, address and other contact information
between 6/1/2013-12/31/2013.” Affidavit for Search Warrant at 1 (executed August 26, 2014),
filed December 1, 2017 (Doc. 78-4)(“Fifth Warrant”).
183.
After providing the same information regarding the NCMEC Tip and Hartsock’s
meeting with Streett as in the Fourth Warrant, the Fifth Warrant describes a photograph that Streett
“appears to have taken . . . with the young female he had intercourse with,” purportedly the fifteenyear-old virgin the Fourth and Fifth Affidavits describe Streett meeting in Illinois and Indiana.
Fifth Warrant at 3.
184.
The Fifth Warrant describes this photograph as showing “what appears to be the
inside of a motel room door.” Fifth Warrant at 3.
185.
According to the Fifth Warrant, the photograph “was found on the cell phone and
by looking at the meta data on the photo, Bentley’s phone that was seized was the phone that took
the photograph. The date is 7/13/13 for the photo and his call records indicate very high usage
that day to this phone number.” Fifth Warrant at 3.
186.
Hartsock says he “believes the girl in the photo was using” the 815-(remainder
redacted) number to communicate with Streett and that he “seeks to identify the owner of the cell
phone account to find the girl and find her involvement with Bentley.” Fifth Warrant at 4.
187.
This 815 telephone number is the same 815 number discussed infra ¶¶ 118-120,
belonging to Jane Doe 1. See Tr. at 124:1-9 (Mease, Hartsock).
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PROCEDURAL BACKGROUND
In December 2015, a grand jury returned a Second Superseding Indictment,29 charging
Streett with two counts of traveling in interstate commerce from New Mexico to Illinois “for the
purpose of engaging in any illicit sexual conduct” with a person under eighteen years of age -- Jane
Doe 1 -- that “would be in violation of Chapter 109A of Title 18, United States Code, had the
sexual act occurred,” in violation of 18 U.S.C. § 2423(b). Second Superseding Indictment at 1-2,
filed December 17, 2015 (Doc. 33). The Second Superseding Indictment charges Streett with five
counts of coercion and attempted coercion of a minor “to engage in sexually explicit conduct for
the purpose of producing a visual depiction of such conduct,” in violation of 18 U.S.C. §§ 2251(a),
(e), and 2256. Second Superseding Indictment at 2-4.30 The Second Superseding Indictment also
charges Streett with one count of distributing visual depictions of minors engaged in sexually
29
The Second Superseding Indictment is the controlling Indictment in this case. The first
Indictment, issued by a grand jury on October 2014, charges Streett with two counts of coercing
or enticing a minor to engage in sexually explicit conduct, in violation of 18 U.S.C. § 2422(b).
See Indictment at 1 2, filed October 21, 2014 (Doc. 12). The Indictment also charges Streett with
two counts of transferring obscene matter to someone younger than sixteen years old, in violation
of 18 U.S.C. § 1470. See Indictment at 2 3.
In February 2015, a grand jury returned a Superseding Indictment, charging Streett with
two counts of traveling in interstate commerce from New Mexico to Illinois “for the purpose of
engaging in any illicit sexual conduct” with a person under eighteen years of age that “would be
in violation of Chapter 109A of Title 18, United States Code, had the sexual act occurred,” in
violation of 18 U.S.C. § 2423(b). Superseding Indictment at 1-2, filed February 25, 2015
(Doc. 22). The Superseding Indictment charges Streett with three counts of attempted production
of a visual depiction of a minor engaging in sexually explicit conduct, in violation of 18 U.S.C.
§§ 2251(a), (e), and 2256. See Superseding Indictment at 2-4. The Superseding Indictment also
charges Streett with two counts of transferring obscene materials to minors, in violation of 18
U.S.C. § 1470. See Superseding Indictment at 4-5.
30
These counts -- Counts 3 through 7 -- each identify a different minor: John Doe, Jane
Doe 4, Jane Doe 1, Jane Doe 2, and Jane Doe 3, respectively. See Second Superseding Indictment
at 2-4.
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explicit conduct, in violation of 18 U.S.C. §§ 2252(a)(2), (b)(1), and 2256, see Second Superseding
Indictment at 5, two counts of transferring obscene materials to minors, in violation of 18 U.S.C.
§ 1470, see Second Superseding Indictment at 5-6, and two counts of possessing child
pornography, in violation of 18 U.S.C. §§ 2252A(a)(5)(B), (b)(2), and 2256, see Second
Superseding Indictment at 6. Streett files the Motion and Supp. Motion to challenge the evidence
collected by law enforcement which will be used to support these charges at trial.
1.
The Motion.
Streett filed the Motion on December 1, 2017. See Motion at 1. The crux of Streett’s
argument in the Motion is that the Second Affidavit “is devoid of any indication that Mr. Streett
resided at 4620 Plume, much less any indication that contraband related to Mr. Streett’s alleged
criminal activity would be found at this residence,” and, thus that “evidence obtained as a result of
th[is] unreasonable search . . . was wrongfully obtained in violation of Mr. Streett’s Fourth
Amendment rights, and should be excluded.” Motion at 1. The Motion likens the Second Affidavit
to the affidavit at issue in United States v. Gonzales, 399 F.3d 1225 (10th Cir. 2005), which
identified the address “321 E. Church” but “never specified that 321 E. Church was the defendant’s
residence, and otherwise never explained the connection between 321 E. Church . . . or the
suspected criminal activity.” Motion at 6 (citing United States v. Gonzales, 399 F.3d at 1228).
According to Streett, the Tenth Circuit in United States v. Gonzales upheld the district court’s
holding to suppress the evidence, concluding the warrant lacked probable cause and the good-faith
doctrine did not apply, because the “underlying documents are devoid of factual support.” Motion
at 7 (quoting 399 F.3d at 1230). Streett contrasts this holding with that in United States v. Beck,
139 F. App’x 950 (10th Cir. 2005)(unpublished)(Browning, J. sitting by designation), where the
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Tenth Circuit upheld the application of the good-faith doctrine, because, “although the affidavit
was weak, it established ‘a minimally sufficient nexus between the illegal activity and the place to
be searched.’” Motion at 8 (quoting 139 F. App’x at 958). Streett concludes from this caselaw
that, because the Second Affidavit lacks the “minimal nexus between 4620 Plume or any of the
items listed on the Affidavit to Mr. Streett or his alleged criminal activity[,] . . . the evidence seized
from the 4620 Plume Search must be suppressed.” Motion at 9. Streett argues that, because the
Second Affidavit states that it seeks to seize “‘documents which indicate proof of residence,’ [this]
impl[ies] that the affiant had no actual knowledge of whether Mr. Streett was, in fact, a resident of
4620 Plume,” underscoring the Second Affidavit’s lack of a minimal nexus. Motion at 1. Streett
thus argues that the Court must exclude “Streett’s statements to police officers; computer; laptop;
smartphone; and regular phone.” Motion at 10.
The Motion concludes by arguing that “all evidence later discovered as a result of this
illegal search of [4620 Plume] must also be excluded. This includes evidence discovered pursuant
to the three search warrants which were later obtained in the months after the initial search of 4620
Plume.” Motion at 10. This exclusion is necessary, Streett asserts, under “the fruit of the
poisonous tree doctrine.” Motion at 9 (citing Wong Sun v. United States, 371 U.S. 471, 485-88
(1963); United States v. Hatfield, 333 F.3d 1189, 1193-94 (10th Cir. 2003); United States v. Lin
Lyn Trading, Ltd., 149
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